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L I S. Hrg. 103-1031, Pt. 2
^' ^ ^.uilnRMATION HEARINGS
ON FEDERAL APPOINTMENTS
DEC I 9 1995 ■
HEARINGS
' rsT"^':''
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
CONFIRMATIONS OF APPOINTEES TO THE FEDERAL JUDICIARY
JANUARY 27; FEBRUARY 3, 24; MARCH 2, 3, 10, AND 16, 1994
Part 2
Serial No. J-103-28
Printed for the use of the Committee on the Judicisiry
/^^^2-A
S. Hrg. 103-1031, Pt. 2
CONHRMATION HEARINGS
ON FEDERAL APPOINTMENTS
HEARINGS
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRD CONGRESS
SECOND SESSION
ON
CONFIRMATIONS OF APPOINTEES TO THE FEDERAL JUDICIARY
JANUARY 27; FEBRUARY 3, 24; MARCH 2, 3, 10, AND 16, 1994
Part 2
Serial No. J-103-28
Printed for the use of the Committee on the Judiciary
GOVERNMEinr iX)CUIIENTS OEPARTMEWT '
^RECEIVED
FEB 2 4 2000
1
U.S. GOVERNMENT PRINTING OFFICE
90-550 WASHINGTON : 1995
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-047739-5
COMMITTEE ON THE JUDICIARY
JOSEPH R. BIDEN, Jr., Delaware, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
HOWARD M. METZENBAUM, Ohio STROM THURMOND, South Carohna
DENNIS DeCONCINI, Arizona ALAN K. SIMPSON, Wyoming
PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa
HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania
PAUL SIMON, IlUnois HANK BROWN, Colorado
HERBERT KOHL, Wisconsin WILLIAM S. COHEN, Maine
DIANNE FEINSTEIN, CaUfomia LARRY PRESSLER, South Dakota
CAROL MOSELEY-BRAUN, IlUnois
Cynthia C. Hogan, Chief Counsel
Catherine M. Russell, Staff Director
Mark R. Disler, Minority Staff Director
Sharon Prost, Minority Chief Counsel
(II)
YhAheu 0IJ6US mri^G^^ ^
'«?WTflA^}0 8ri«3wiitXJU V^iiii^^^^'-'
* lOOS i-\ I I
CONTENTS
HEARING DATES
Page
Thursday, January 27, 1994 1
Thursday, February 3, 1994 349
Thursday, February 24, 1994 511
Wednesday, March 2, 1994 675
Thursday, March 3, 1994 761
Thursday, March 10, 1994 959
Wednesday, March 16, 1994 1059
THURSDAY, JANUARY 27, 1994
Statements of Committee Members
Kohl, Hon. Herbert 1
Cohen, Hon. WilUam S 14
Introduction of Nominees
Kennedy, Hon. Edward M 2
Specter, Hon. Arlen 3
Wofford, Hon. Harris 4
Glenn, Hon. John 6
Metzenbaum, Hon. Howard 7
Stokes, Hon. Louis 7
Norton, Hon. Eleanor Holmes 8
Breavtx, Hon. John B 9
Jefferson, Hon. William J 11
Testimony of Nominees
Hon. Judith Ann Wilson Rogers, of Washington, DC, to be U.S. Circuit Judge
for the District of Columbia 12
Hon. Michael A. Ponsor, of Massachusetts, to be U.S. District Judge for
the District of Massachusetts 18
Hon. Lesley Brooks Wells, of Ohio, to be U.S. District Judge for the Northern
District of Ohio 22
Marjorie Rendell, of Pennsylvania, to be U.S. District Judge for the Eastern
District of Pennsylvania 27
Thomas Vanaskie, of Pennsylvania, to be U.S. District Judge for the Western
District of Pennsylvania 30
Helen Georgena Berrigan, of Louisiana, to be U.S. District Judge for the
Eastern District of Louisiana 34
Tucker Melancon, of Louisiana, to be U.S. District Judge for the Western
District of Louisiana 39
Alphabetical List and Materlu. Submitted
Berrigan, Helen Georgena:
Testimony 34
Questionnaire 230
Biden, Chairman Joseph R., Jr.:
Letter from Charles A. Vanik, Washington, DC, Jan. 24, 1994 304
(III)
IV
Biden, Chairman Joseph R., Jr. — Continued
Statement of Laurack D. Bray, opposing the confirmation of Judith Rog- ^^^
ers 305
Copies of two civil rights complaints filed in the U.S. District Court
for the District of Columbia:
Alice Cheffield v. Henry F. Greene 307
Sceva J. Kendall v. John Ferren, John Terry, and Michael Farrell 336
Melancon, Tucker:
Testimony 39
Questionnaire 261
Court cases 283
Ponsor, Hon. Michael A.:
Testimony 18
Questionnaire 69
Rendell, Marjorie:
Testimony 27
Questionnaire 149
Rogers, Hon. Judith Ann Wilson:
Testimony ■. 12
Questionnaire 43
Vanaskie, Thomas:
Testimony 30
Questionnaire 192
Wells, Hon. Lesley Brooks:
Testimony 22
Questionnaire 113
THURSDAY, FEBRUARY 3, 1994
Statements of Committee Members
Biden, Chairman Joseph R., Jr 349
Hatch, Hon. Orrin G 351
Moseley-Braun, Hon. Carol 353
Cohen, Hon. William S 353
Simon, Hon. Paul 374
Thurmond, Hon. Strom 380
Grassley, Hon. Charles E 391
Introduction of Nominee
Graham, Hon. Bob 354
Mack, Hon. Connie 357
Chiles, Hon. Lawton 376
Testimony of Nominee
Hon. Rosemary Barkett, of Florida, to be a U.S. Circuit Judge for the Elev-
enth Circuit 359
Alphabetical List and Material Submitted
Barkett, Hon. Rosemary:
Testimony 359
Questionnaire 429
Disler, Mark:
Letter to Chairman Biden, Apr. 13, 1994 481
Chairman Biden's response, Apr. 15, 1994 482
Excerpt from the Congressional Record, Oct. 7, 1994 483
Graham, Hon. Bob:
Prepared statement 356
Articles relating to the nomination of Rosemary Barkett:
The Miami Herald, Sept. 28, 1993 484
The News-Journal, Sept. 28, 1993 485
The Orlando Sentinel, Sept. 29, 1993 486
Sun-Sentinel, Oct. 1, 1993 487
The Tampa Tribune, Oct. 2, 1993 488
Graham, Hon. Bob — Continued
Articles relating to the nomination of Rosemary Barkett — Continued ^^
The News-Journal, Oct. 18, 1993 489
St. Petersburg Times, Oct. 19, 1993 490
Tallahasse Democrat, Oct. 21, 1993 491
Fort Lauderdale Sun-Sentinel, Oct. 21, 1993 492
Sarasota Herald-Tribune, Oct. 22, 1993 493
Gainesville Sun, Oct. 23, 1993 494
The Palm Beach Post, Oct. 24, 1993 495
The Orlando Sentinel, Oct. 25, 1993 496
Florida Clipping Service, Inc., Oct. 26, 1993 497
The Orlando Sentinel, Oct. 31, 1993 498
The New York Times, Nov. 5, 1993 499
Ocala Star Banner, Nov. 8, 1993 500
News-Press, Nov. 13, 1993 501
Miami Times, Nov. 18, 1993 502
The Wall Street Journal, Nov. 29, 1993 503
The New Yorker, Dec. 20, 1993 504
St. Petersburg Times, Dec. 21, 1993 506
Gainesville Sun, Dec. 23, 1993 507
The Atlanta Journal, Dec. 26, 1993 508
Hatch, Hon. Orrin G.:
Questions for Chief Justice Barkett 469
Responses from Chief Justice Barkett 472
Supplemental questions for Chief Justice Barkett and her responses 476
Simon, Hon. Paul:
Letter to Chairman Biden from the National Association of Police Organi-
zations, Inc., Washington, DC, Oct. 22, 1993 375
Thurmond, Hon. Strom:
Questions for Chief Justice Barkett 477
Responses from Chief Justice Barkett 480
THURSDAY, FEBRUARY 24, 1994
Statements of Committee Members
Hellin, Hon. Howell 511
Brown, Hon. Hank 518
Introduction of Nominees
Hutchison, Hon. Kay Bailey 511
Brooks, Hon. Jack 512
Coleman, Hon. Ronald D 513
Bryant, Hon. John 513
Tejeda, Hon. Frank 514
Ortiz, Hon. Solomon P 525
Testimony of Nominees
Samuel Frederick Bieiy, Jr., San Antonio, TX, to be U.S. District Judge
for the Western District of Texas 518
William Royal Furgeson, Jr., El Paso, TX, to be U.S. District Judge for
the Western District of Texas 519
Orlando Luis Garcia, San Antonio, TX, to be U.S. District Judge for the
Western District of Texas 521
John Henry Hannah, Jr., Tyler, TX, to be U.S. District Judge for the Eastern
District of Texas 523
Janis Ann Graham Jack, Corpus Christi, TX, to be U.S. District Judge for
the Southern District of Texas 524
Alphabetical List and Material Submitted
Biery, Samuel Frederick, Jr.:
Testimony 518
Questionnaire 527
VI
Furgeson, William Royal, Jr.: Page
Testimony 519
Questionnaire 554
Gsircia, Orlando Lms:
Testimony 521
Questionnaire 580
Hannah, John Henry, Jr.:
Testimony 523
Questionnaire 606
Jack, Janis Ann Graham:
Testimony 524
Questionnaire 638
WEDNESDAY, MARCH 2, 1994
Statements of Committee Members
Biden, Chairman Joseph R., Jr 675
Prepared statement 677
Hatch, Hon. Orrin G 682
Prepared statement 683
Grassley, Hon. Charles E 696
Introduction of Nominee
Moynihan, Hon. Daniel Patrick 678
D'Amato, Hon. Alfonse 680
Prepared statement 681
McNulty, Hon. Michael R 685
Quinn, Hon. Jack 685
Prepared statement 686
Testimony of Nominee
Thomas A. Constantine, Schenectady, NY, to be Administrator, U.S. Drug
Enforcement Administration 688
Alphabetical List and Material Submitted
Biden, Chairman Joseph R., Jr.:
List of law enforcement organizations and former DEA Administrators
supporting the nomination 692
Questions for Superintendent Thomas Constantine and his responses 747
Constantine, Thomas Arthur:
Testimony 688
Questionnaire 716
Leahy, Hon. Patrick J.:
Questions for Superintendent Thomas Constantine and his responses 756
Moynihan, Hon. Daniel Patrick:
Reprint from the American Scholar: "Iatrogenic Government" 734
Chart of homicides per 100,000 746
THURSDAY, MARCH 3, 1994
Statements of Committee Members
Feinstein, Hon. Dianne 761
Thurmond, Hon. Strom 764
Introduction of Nominees
HolHngs, Hon. Ernest F 762
Murray, Hon. Patty 764
Wellstone, Hon. Paul 765
Hatfield, Hon. Mark O 766
Wyden, Hon. Ron 767
Graham, Hon. Bob 768
VII
Graham, Hon. Bob— Continued ^^®
Prepared statement 769
Johnston, Hon. Harry 770
Durenberger, Hon. Dave 789
Testimony of Nominees
Cameron Currie, Columbia, SC, to be U.S. District Judge for the District
of South CaroHna 770
Franklin D. Burgess, Tacoma, WA, to be U.S. District Judge for the Western
District of Washington 776
Michael Davis, Minneapolis, MN, to be U.S. District Judge for the District
of Minnesota 779
Ancer Haggerty, Portland, OR, to be U.S. District Judge for the District
of Oregon 783
Daniel T.K. Hurley, South Palm Beach, FL, to be U.S. District Judge for
the Southern District of Florida 786
Alphabetical List and Material Submitted
Biden, Chairman Joseph R., Jr.:
Letter in opposition to the appointment of Judge Ancer Haggerty to
the Federal bench, from Roy B. Thompson, P.C, Portland, OR, Mar.
2, 1994 955
Letter in support of the nomination of Judge Michael James Davis to
be a U.S. district judge for the District of Minnesota, from Members
of Congress, House of Representatives, Washington, DC, Mar. 3, 1994 .. 958
Burgess, Franklin Douglas:
Testimony 776
Questionnaire 814
Cvurie, Cameron:
Testimony 770
Questionnaire 791
Davis, Michael:
Testimony 779
Questionnaire 830
Haggerty, Ancer:
Testimony 783
Questionnaire 884
Hurley, Daniel T.K.:
Testimony 786
Questionnaire 918
THURSDAY, MARCH 10, 1994
Statements of Committee Members
Biden, Chairman Joseph R., Jr 959
Hatch, Hon. Orrin G 960
Simon, Hon. Paul 965
Thurmond, Hon. Strom 983
Metzenbaum, Hon. Howard M 986
Simpson, Hon. Alan K 988
Feinstein, Hon. Dianne 991
Cohen, Hon. William S 994
Moseley-Braun, Hon. Carol 997
Prepared statement 1000
Grassley, Hon. Charles E 1001
Heflin, Hon. Howell 1005
Specter, Hon. Arlen 1006
Leahy, Hon. Patrick J 1010
Introduction of Nominee
Kerry, Hon. John F 962
Prepared statement 964
Coppersmith, Hon. Sam 965
VIII
Coppersmith, Hon. Sam — Continued p^^
Prepared statement 967
Kennedy, Hon. Edward M 972
Testimony of Nominee
Deval L. Patrick, to be Assistant Attorney General for Civil Rights, U.S.
Department of Justice 968
Alphabetical List and Material Submitted
Biden, Chairman Joseph R., Jr.:
Letters from:
Hill & Barlow, Boston, MA, Mar. 2, 1994 1051
Massachusetts Black Lawyers Association, Boston, MA, Mar. 9, 1994 1053
U.S. Department of Justice, Washington, DC, Mar. 14, 1994, with
Deval Patrick's responses to Senator Pressler's written questions ... 1055
Coppersmith, Hon. Sam:
'The Right Person Is Put Forward for Civil Rights Post", by Judge
Stephen Reinhardt, from the Los Angeles Times, Feb. 21, 1994 1050
Kennedy, Hon. Edward M.:
Prepared statement of the Lawyers' Committee for Civil Rights Under
Law 1010
Patrick, Deval L.:
Testimony 968
Prepared statement 971
Questionnaire 1013
WEDNESDAY, MARCH 16, 1994
Statements of Committee Members
Biden, Chairman Joseph R., Jr 1059
Hatch, Hon. Orrin G 1061
Simon, Hon. Paul 1071
Moseley-Braun, Hon. Carol 1078
Prepard statement 1078
Feinstein, Hon. Dianne 1078
Thurmond, Hon. Strom 1081
Metzenbaum, Hon. Howard M 1085
Grassley, Hon. Charles E 1088
Cohen, Hon. William S 1090
Specter, Hon. Arlen 1099
Introduction of Nominee
Mikulski, Hon. Barbara 1064
Sarbanes, Hon. Paul S 1064
Morella, Hon. Constance A 1065
Testimony of Nominee
Jamie S. Gorelick, to be Deputy Attorney General, U.S. Depsutment of Jus-
tice 1067
Alphabetical List and Material Submitted
Biden, Chairman Joseph R., Jr.:
Letter from the U.S. Department of Justice, Washington, DC, May 12,
1994 1154
Attachments — Jamie Gorelick's respones to questions submitted by:
Senator Leahy 1155
Senator Simpson 1158
Senator Pressler 1159
DOJ memorandums to:
Janet Reno, Attorney General, from 18 trial lawyers. Environmental
Crimes Section, Mar. 3, 1994 1165
IX
Biden, Chairman Joseph R., Jr. — Continued ^^^^
DOJ memorandums to— Continued
All section line attorneys, from Messrs. Miskiewicz, Murtha, Nagle,
and Uhlman, Mar. 4, 1994 1167
Gorelick, Jamie:
Testimony 1067
Questionnaire 1111
Moseley-Braun, Hon. Carol:
Letter from the Hispanic Bar Association of the District of Columbia,
Washington, DC, Mar. 15, 1994 ...., 1169
ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS
Barkett, Hon. Rosemary, of Florida, to be U.S. Circuit Judge for the Eleventh
Circuit 359
Berrigan, Helen Georgena, of Louisiana, to be U.S. District Judge for the
Eastern District of Louisiana 34
Biery, Samuel Frederick, Jr., San Antonio, TX, to be U.S. District Judge
for the Western District of Texas 518
Burgess, Franklin D., Tacoma, WA, to be U.S. District Judge for the Western
District of Washington 776
Constantine, Thomas A., Schenectady, NY, to be Administrator, U.S. Drug
Enforcement Administration 688
Ciurie, Cameron, Columbia, SC, to be U.S. District Judge for the District
of South Carolina 770
Davis, Michael, Minneapolis, MN, to be U.S. District Judge for the District
of Minnesota 779
Furgeson, William Royal, Jr., El Paso, TX, to be U.S. District Judge for
the Western District of Texas 519
Garcia, Orlando Luis, San Antonio, TX, to be U.S. District Judge for the
Western District of Texas 521
Gorelick, Jamie S., to be Deputy Attorney General, U.S. Department of Jus-
tice 1067
Haggerty, Ancer, Portland, OR, to be U.S. District Judge for the District
of Oregon 783
Hannah, John Henry, Jr., Tyler, TX, to be U.S. District Judge for the Eastern
District of Texas 523
Hurley, Daniel T.K., SouVh Palm Beac^^^ Judge for
the Southern District of Florida 786
Jack, Janis Ann Graham, Corpus Christi, TX, to be U.S. District Judge
for the Southern District of Texas 524
Melancon, Tucker, of Louisiana, to be U.S. District Judge for the Western
District of Louisiana 39
Patrick, Deval L., to be Assistant Attorney General for Civil Rights, U.S.
Department of Justice 968
Ponsor, Hon. Michael A., of Massachusetts, to be U.S. District Judge for
the District of Massachusetts 18
Rendell, Marjorie, of Pennsylvania, to be U.S. District Judge for the Eastern
District of Pennsylvania 27
Rogers, Hon. Judith Ann Wilson, of Washington, DC, to be U.S. Circuit
Judge for the District of Columbia 12
Vanaskie, Thomas, of Pennsylvania, to be U.S. District Judge for the Western
District of Pennsylvania 30
Wells, Hon. Lesley Brooks, of Ohio, to be U.S. District Judge for the Northern
District of Ohio 22
NOMINATIONS OF JUDITH ANN WILSON ROG-
ERS, TO BE U.S. CIRCUIT COURT JUDGE; MI-
CHAEL A. PONSOR; LESLEY BROOKS WELLS;
MARJORIE RENDELL; THOMAS VANASKIE;
HELEN GEORGENA BERRIGAN; AND TUCK-
ER MELANCON, TO BE U.S. DISTRICT
JUDGES
THURSDAY, JANUARY 27, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 2:03 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Herb Kohl presiding.
Also present: Senators Kennedy, Metzenbaum, Specter, and
Cohen.
OPENDSIG STATEMENT OF SENATOR KOHL
Senator KOHL. This hearing will come to order.
This afternoon, the Judiciary Committee will conduct a hearing
on the following judicial nominees: Judge Judith Rogers, of the Dis-
trict of Columbia, to be circuit court judge for the District of Co-
lumbia Court of Appeals; Judge Michael Ponsor, to be district court
judge for the District of Massachusetts; Judge Lesley Brooks Wells,
to be district court judge for the Northern District of Ohio; Marjorie
Rendell, to be district court judge for the Eastern District of Penn-
sylvania; Thomas Vanaskie, to be district court judge for the Mid-
dle District of Pennsylvania; Helen Berrigan, to be district court
judge for the Eastern District of Louisiana; and Tucker Melancon,
to be district judge for the Western District of Louisiana.
As is customary, we will hear first from Senators and Represent-
atives who wish to introduce nominees to the committee. But be-
fore we turn to them, let me state for the record that each nominee
has completed a detailed questionnaire on his or her qualifications,
experience, finances, and philosophy. The portions of the question-
naires available to the public will be printed in the record of this
hearing.
We understand that we may receive written testimony about the
nomination of Judith Rogers from Larac Bray. We will keep the
record open for a limited time for any other written testimony sub-
mitted to the committee, and just in case members of the commit-
tee would like to submit written questions. Of course, we will place
(1)
in the record the full introductory statements of home State Sen-
ators.
Are there any other comments from Senators before we move on
to introductions?
[No response.]
We have a number of very distinguished Senators and Rep-
resentatives who are with us today, and we would like to begin
with them as they introduce the nominees from their State. First
we would like to ask Senator Kennedy and, if he is here. Senator
Kerry to speak in behalf of Judge Ponsor, if Judge Ponsor would
come forward.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR
FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman and
Senator Specter.
I want to follow the adage that the shorter the introduction, the
more rapidly the committee considers the nominee, so I will not
take a great deal of time. But I want to say what a real honor it
is to be able to recommend to this committee and to the Senate a
really extraordinary candidate for judge for the Federal district
court in Massachusetts.
Michael Ponsor has been associated with excellence since the
earliest days of his life, an absolutely brilliant student in his early
days and his primary and secondary days, an outstanding academic
record in college at Harvard University, was awarded a Rhodes
Scholarship and later at Yale, has had a brilliant career in the law
in the private sector among many of our outstanding law firms in
Boston and western Massachusetts; currently serves as a mag-
istrate.
As you know, Mr. Chairman, magistrates, with the agreement of
the parties, can serve as the judge in civil cases. It is a fact that
Michael Ponsor has served with the confidence of the parties more
than all of the other magistrates in Massachusetts combined. I
think this is a very clear indication of the kind of confidence that
those that have respect for the law and have a sense of his fairness
and his judiciousness have taken.
One of the qualities of Michael Ponsor that I find most appealing
is his interest in community and pro bono work. In high school, he
was involved in tutoring children. In college, in his junior year, he
went and taught English in Kenya. He is the only person that I
have ever known or that probably has been before this committee
that speaks Swahili as well as Finnish.
When he was in law school, he served in the Legal Defenders
and spent a great deal of time both in law school at Yale and also
in the practice of the law with pro bono work. He probably has had
as much pro bono work as many, many other individuals combined
before this committee.
We had set up, John Kerry and I, a group of men and women,
distinguished men and women of the bar in Massachusetts. That
committee was chaired by Mr. Curtin, who was the former presi-
dent of the ABA, and had many distinguished members.
They had recommended to Senator Kerry and to myself Michael
Ponsor, and we had the opportunity of reviewing the background
and the experience and the temperament of individuals, Michael
Ponsor and others, and Senator Kerry and I have a great sense of
pride in recommending his name to the President, and we feel that
the President has selected wisely in sending him to this committee.
I know that he will be an outstanding judge. He served as a clerk
to Judge Tauro, who is the chief of our court, and Judge Tauro,
who is one of our most distinguished members, has nothing but the
highest praise and recommendation of this nominee.
I am proud to make the recommendation, and I look forward to
favorable approval by the committee and the Senate.
Thank you.
Senator KOHL. Thank you very much, Senator Kennedy.
I notice that Senator Kerry is guiding legislation on the floor at
this time and wanted to be here.
Senator KENNEDY. He wanted to have his remarks included. I
know I spoke for him when I made those comments, and if he was
not on the floor, he would be over here.
If I could just take 30 seconds more, it is a personal delight for
me also to say that Judge Rendell has been nominated, and I have
known the family for many, many years — intelligent, thoughtful,
committed to law. He has been a very dear and wonderful, valued
friend, and I know will be an outstanding judge.
Senator KoHL. We thank you.
We thank you, Judge Ponsor. We will get back to you.
Second, we have here with us today Senators Specter and
Wofford, who will be speaking in behalf of Ms. Rendell and also
Mr. Vanaskie. If they would come forward, please, Ms. Rendell and
Mr. Vanaskie.
Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Specter. Thank you very much, Mr. Chairman.
It is easier to find a seat up here today than it is in the hearing
room, so I will exercise my prerogative as being both an introducer
and a committee member. It is not to be both a litigant and a judge
in the same case.
I have the distinct pleasure, along with my colleague Senator
Wofford, to present to the committee two very distinguished law-
yers.
Ladies first, Marjorie Rendell has an outstanding academic
record, graduating cum laude from the University of Pennsylvania,
and graduating from Villanova Law School. She has worked with
the very prestigious law firm, Duane, Morris & Heckscher in Phila-
delphia, for more than 20 years, and she has a really outstanding
record.
Beyond those formal qualifications, I can personally attest to
knowing Midge Rendell from the time she came to a district attor-
ney's party in Philadelphia with a young assistant district attorney
whom she married in 1971. And with her tutelage and instruction,
he became the district attorney of Philadelphia, and he is now the
mayor of Philadelphia.
There is an old story, which I will take just 1 minute to tell. It
was first told to me about Mayor Flaherty of Pittsburgh, and I be-
lieved it at the time. He was married to a very distinguished
woman, Nancy Flaherty, and they were walking along and ran into
a fellow coming out of a sewer pond. Mrs. Flaherty recognized the
young man and greeted him, and, as they walked away, told Mayor
Flaherty that they used to date. He said to her, "Aren't you glad
you married me? I'm the Mayor of Pittsburgh." As you may have
guessed by now, she said, "If I had married him, he would have
been the Mayor of Pittsburgh." [Laughter.]
I thought that was a true story, and perhaps it is. Midge Rendell
is married to Ed Rendell, the mayor, and has a very, very distin-
guished professional career in her own right, and I am delighted
to see her nominated here today.
If I may proceed now with Mr. Tom Vanaskie, another very dis-
tinguished lawyer: Tom Vanaskie is a graduate of the Dickinson
School of Law, a cum laude. He clerked for Judge William Nealon,
a very distinguished jurist in the Middle District of Pennsylvania.
He was associated with a very outstanding and prestigious law
firm, Dilworth, Paxson, LaHsh & Kauffman, for 2 years, at a time
when I believe the current Governor of Pennsylvania, Grovemor
Casey, was associated with the firm. He has been in his own firm,
Elliott, Vanaskie & Riley, for the past decade.
He hails from Scranton, PA, and has promised to be an outstand-
ing district judge, and I am delighted to join with Senator Wofford
in presenting Ms. RendeU and Mr. Vanaskie to the committee
today.
Senator KOHL. Thank you very much. Senator Specter.
Senator Wofford.
STATEMENT OF HON. HARRIS WOFFORD, A U.S. SENATOR
FROM THE STATE OF PENNSYLVANIA
Senator WOFFORD. Senator Kohl, Mr. Chairman, Senator Cohen,
my senior Senators. I thank you, Arlen.
It is my pleasure to come here today to introduce two Pennsylva-
nians that the President has nominated for the U.S. district court.
First, to my right is Thomas Vanaskie, who is a nominee for the
Federal District Court for the Middle District of Pennsylvania.
With him today is his family, his wife Dorothy, and his three chil-
dren, Diane, Laura, and Tommy.
Would you stand? Thank you, Vanaskies all.
Tom comes from the central portion of our State, a small coal
mining town called Schmoken, where he learned the value of hard
work from his parents, his father a seasonal bricklayer and local
labor leader, and his mother a shirt factory worker. By the time he
graduated from law school, Tom had worked as a paper boy, a serv-
ice station attendant, a dishwasher, a fast-food worker, a tree
planter, an assembly line worker, a stock boy, and as a construc-
tion worker, and probably a few other things.
He also found time to distinguish himself academically, graduate
magna cum laude from Lycoming College in Williamsport, and
graduating cum laude from Dickinson School of Law in Carlisle,
where he ranked fourth in his class and was a member of the Law
Review editorial staff.
After law school, Tom clerked for 2 years with then Chief Judge
William Nealon of the U.S. District Court for the Middle District.
And for the past 14 years, he has been in private practice and is
currently a partner and vice president of Elliott, Vanaskie & Riley
in Scranton.
During his years of practice, Tom has been an active member of
eight bar associations, a recognized leader of the middle district
bar. He was appointed to the Lawyers Advisory Committee of the
U.S. District Court for the Middle District in 1992, and the next
year he was appointed to the Civil Justice Reform Act Committee
for the middle district bench.
I know he will be a fme addition to the middle district bench.
Next, Marjorie "Midge" Rendell, who the President has nomi-
nated to the U.S. District Court for the Eastern District of Penn-
sylvania. She is accompanied by her husband Ed Rendell, Ed the
mayor, and their son Jesse.
Would you stand? Thank you.
Midge was bom in our neighboring State, the chairman of this
committee's State of Delaware, but thereafter she graduated cum
laude from the University of Pennsylvania, where she was as mem-
ber of Phi Beta Kappa. She attended Georgetown University Law
School, where she was asked to join the school's law journal, before
she transferred and then graduated from Villanova Law School.
She began her legal career in 1973 at the Philadelphia firm of
Duane, Morris & Heckscher, where she is now a partner and leader
of the reorganization and finance section. She is a recognized ex-
pert on issues of bankruptcy and commercial finance law, a subject
on which she has written articles and conducted numerous semi-
nars and presentations.
In addition to her reputation as a respected member of both the
Philadelphia and Pennsylvania bars. Midge Rendell has been a
civic leader. She serves on the boards of the Academy of Vocal Arts,
as vice chair of the Avenue of the Arts, Inc., the Market Street
East Improvement Association, Pennsylvania's Campaign for
Choice, Philadelphia Friends for Outward Bound, and vice chair of
the board of trustees for the Visiting Nurses Association of Greater
Philadelphia, and on the board of managers of the Visiting Nurses
Society.
She is engaged in pro bono activity that includes work as a medi-
ator with the U.S. District Court for the Eastern District, and is
a board member of the Philadelphia Bar Foundation.
She is that rare individual who combines the talent of people
skills with intellectual and professional ability, to make a positive
contribution to the people and institutions around her. I am certain
she will do the same as an outstanding member of the eastern dis-
trict bench.
Again, I express my delight at being able to present to you two
nominees who are fair, principles, intelligent, and dedicated law-
yers, who will make excellent Federal judges.
Senator KoHL. We thank you very much. Senator Wofford.
We will get back to you in just a short while, my friends.
Next we have here Judge Wells, who will be introduced by Sen-
ator Metzenbaum, Senator Glenn, and also Congressman Lewis
Stokes.
Senator Glenn.
STATEMENT OF HON. JOHN GLENN, A U.S. SENATOR FROM
THE STATE OF OHIO
Senator Glenn. Thank you, Mr. Chairman and members of the
committee.
It is a real pleasure for me to be here this afternoon to present
to you Judge Lesley Brooks Wells. With so many qualified persons
in Ohio, the decision of who to recommend for this post was not an
easy one. And I know you are all aware that Judge Wells has ster-
ling legal credentials and a distinguished legal background. But
what sets Judge Wells apart for me was her commitment to public
service and her willingness to face head-on the tough issues which
plague our society.
I do not believe that it is enough for the people we entrust with
the awesome responsibility of serving on the Federal bench to know
just legal theory. In order to perform their job effectively, I believe
they should also feel a deep sense of responsibility to society. And
through her actions. Judge Wells has proven her commitment to
society and she has wrestled with many of the difficult issues that
a Federal judge must face.
For 3 years, she traveled throughout Ohio as chair of the Gov-
ernor's Task Force on Family Violence. The task force focused on
child abuse, elder abuse, domestic violence, all vitally important is-
sues afflicting modem American society.
She has also been a shining example of the good that lawyers
can do, if they just put their minds to it. It was her leadership that
established a citywide pro bono program, encouraging all lawyers
in her native Cleveland to reach out and give a little something
back.
Judge Wells has also been a real inspiration in Ohio, working on
such difficult issues as mental health and counseling, legal aid, and
improving the health care received by residents of Cleveland's
inner-city.
Mr. Chairman and members of the committee, we could go on
with other accomplishments and accolades, but I think you get the
idea. In her life and in her work, she has proven that one person
really can make a difference.
I respectfully ask the members of this committee to allow Judge
Wells to continue making a difference and to serve as a positive
force of commitment, integrity, and responsibility on the Federal
bench.
I think Judge Wells' two daughters are here today, and I would
like to introduce them. I think Karen and Christen are back in the
back here.
Would you stand up? Thank you.
And thank you, Mr. Chairman. I am glad to recommend Judge
Wells and give my unqualified recommendation. I know that she
will be a great Federal judge.
Senator KOHL. Thank you. Senator Glenn.
Senator Metzenbaum.
STATEMENT OF HON. HOWARD M. METZENBAUM, A U.S.
SENATOR FROM THE STATE OF OHIO
Senator METZENBAUM. Mr. Chairman, I am pleased to join Sen-
ator Glenn and Congressman Lew Stokes in support of the nomina-
tion of Judge Lesley Brooks Wells.
It comes as no surprise that those who know Judge Wells, that
President Clinton has nominated her to serve on the Federal
bench. That is where she should be, and I hope that, as a result
of this committee's deliberations and the Senate action, that she
will be on that bench.
Her dedication to legal excellence and public service make her an
outstanding candidate to serve on the Federal district bench, and
she deserves our support.
One of the reasons that she will be an excellent Federal judge
is her ability to put herself in the shoes of the parties that appear
before her. Her ability stems from the fact that she has a diverse
legal and nonlegal background that few can match.
After obtaining her B.A. from Chatham College in 1959, and rais-
ing a family, she is one of those pioneering women in the 1970's
who made the law their second career. Since that time, she has
been a sole practitioner, an equal employment opportunity litiga-
tion director, an adjunct professor of law and urban studies at sev-
eral Ohio universities.
In 1983, she was appointed to the Court of Common Pleas in
Cuyahoga County, OH. During her term on the bench, she has lit-
erally served with distinction and is well known for her fairness,
for her scholarship, and her wonderful judicial temperament.
Despite the rigorous schedule one must keep as a trial judge, she
has made the time to volunteer at a free medical clinic. Her energy
and enthusiasm for life and the law and public service seems to
have no bounds.
I urge this committee to promptly move forward with her nomi-
nation and send her name to the entire Senate for confirmation.
Senator KOHL. Thank you very much. Senator Metzenbaum.
Congressman Stokes.
STATEMENT OF HON. LOUIS STOKES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OHIO
Mr. Stokes. Thank you very much, Mr. Chairman.
It is an honor for me to join my two distinguished Senators from
the State of Ohio, Senator Glenn and Senator Metzenbaum, here
this afternoon in behalf of the nomination of Judge Lesley Brooks
Wells.
One of the things I think distinguishes this lady, along with the
outstanding and exemplary legal career she has had is that she
was a person characterized with a strong community activist record
in our community for 30 years. While raising her four children, she
was involved in the community school activities and development
of a stable, integrated community.
Mr. Chairman, while raising her children, she went to law school
and served in a variety of legal positions, specializing in civil
rights, with a strong involvement in matters involving ethics. Her
law practice was also extremely diverse. She is an individual wh'^
8
has served all the way from a neighborhood law office to one of
Cleveland's oldest law firms.
During this period, she has been very active in the political life
of our community, and extremely active in matters related to the
Democratic Party in the State of Ohio. The political organization
which I happen to chair in Cleveland always endorsed her in every
one of her races. She was one of the persons in our community
whom we felt was one of the finest public servants that we have
had the privilege of supporting.
She brings to this nomination and to this room today great back-
ground in terms of her service on the bench, both in domestic rela-
tions court and several years on the common pleas court bench.
Throughout her career, in all of her ratings she has been rated ex-
tremely high, both in terms of scholarship and integrity. She is the
type of judge who can face the type of tough issues faced by a Fed-
eral court judge. She has been a professor of law. She is a prolific
writer on legal matters.
I would just like to close by reading just a brief paragraph from
a letter she dropped to me last year when she was here in conjunc-
tion with her nomination and had been over to see the two Sen-
ators. She stopped by my office and she wrote me a letter after her
return to Cleveland, and I just want to read this paragraph from
that letter:
When I left your office, I walked to the Supreme Court to pay my respects to Mr.
Justice Marshall. Walking past the men and women calming waiting became a pow-
erful experience. There was no stiff solemnity, no restlessness in the long lines, just
respect and a kind of solid comfort. Your experience arguing the Terry case ran
through my mind. People talked in line about Justice Marshall, what he meant to
them, why they were there. Loss was expressed, but joy, too, especially for his cour-
age and example. It was a gathering I won't forget. Fierce for justice how I think
of him, and a powerful example to every one of us.
I think that those words exemplify the characteristics that this
distinguished lady would bring to the Federal judiciary, and I
would urge this distinguished committee to confirm her nomina-
tion.
I thank you, Mr. Chairman.
Senator KoHL. Thank you very much, Congressman Stokes, Sen-
ator Glenn and Senator Metzenbaum.
Before we ask you to step down, and we will ask you back in a
minute, I would just like to ask you in a word. Judge Wells, can
you confirm the veracity of everything that has been said about
you? [Laughter.]
Judge Wells. It is time for silence.
Senator KoHL. You have not taken the oath yet. [Laughter.]
We have Judge Judith Rogers, who will step up now, and the
District Delegate Eleanor Holmes Norton along with her to intro-
duce her.
STATEMENT OF HON. ELEANOR HOLMES NORTON, A REP-
RESENTATIVE IN CONGRESS FROM THE DISTRICT OF CO-
LUMBIA
Ms. Norton. Thank you, Mr. Chairman.
It is a great pleasure and a real privilege to be able to introduce
to you this afternoon a woman of well-known accomplishments in
this city. I recognize that it is not necessary to call the entire roll
on her long list of accomplishments.
May I say, though, that chief judge Judith Rogers, Chief Judge
of the District of Columbia Court of Appeals, has spent her life in
the law, and much of that life already as a judge in a way that has
profoundly prepared her for the role that President Clinton has
nominated her to assume.
Chief Judge Rogers has served for more than 10 years on our
court of appeals, and for half of that time she has been chief judge.
She was chosen as chief judge when there were judges considerably
more senior, an indication of the regard in which she is held, be-
cause of both her intellect and her leadership ability.
Before coming to the court of appeals. Judge Rogers served as
corporation counsel for the District of Columbia, and before that as
an attorney in the U.S. Department of Justice. She has also served
as an assistant U.S. attorney for the District of Columbia.
Judge Rogers is a graduate with honors of Radcliffe and a grad-
uate, as well, of Harvard Law School. I have personally seen Judge
Rogers at work in a way that makes me not only comfortable, but
very proud to recommend her. She has made distinguished con-
tributions to our civil and criminal justice system. She has worked
with tenacity to improve that system, both structurally and legally.
Many of us cannot imagine that court now without Chief Judge
Rogers at the helm.
Mr. Chairman, may I say that, as I have already heard, you will
have before you many distinguished candidates. I believe it is rare
that you will find a candidate of the quality of Chief Judge Judith
Rogers, and I am pleased to recommend her for the position of a
judge on the U.S. Court of Appeals for the District of Columbia.
Senator KOHL. Thank you for that very kind introduction.
We will get back to you in just a few minutes.
We now have Helen Berrigan and Tucker Melancon who will step
forward, along with their introducers.
Senator Breaux.
STATEMENT OF HON. JOHN B. BREAUX, A U.S. SENATOR FROM
THE STATE OF LOUISIANA
Senator Breaux. Thank you very much, Mr. Chairman and Sen-
ator Cohen, for allowing us to present Ginger Berrigan and Tucker
Melancon to the committee for approval of their nominations to the
district courts in Louisiana, the Federal district court.
Tucker Melancon, if there is ever any question about his desire
and willingness to serve in this position, let me assure this commit-
tee that this is an individual who has called me daily for the last
4 months asking me when we would get to this day. He has the
strong desire and willingness to serve, and I, without question, rec-
ommend him for approval by this committee.
All of our nominees are going to be extremely well qualified in
the law, and Tucker is no different in that regard, having grad-
uated from Louisiana State University and a degree in law from
Tulane University in Louisiana.
But he also brings to this committee I think something that is
very important for all of our judges in our system, and that is a
knowledge not just of the law, but also a knowledge of the people
10
that come before their courts. He is a real classic example of a
small town lawyer who has had a small town practice. He has
probably got his fees paid by corporations every now and then. He
has probably also received fees from the products that were pro-
duced in this little parish in Louisiana of Avoyelles Parish, where
he is from. Probably he was paid in a few fruits and vegetables and
maybe some of the other commodities, because many of his clients
could not afford to write a check.
Tucker Melancon also has been the type of person that accepted
everybody who came before him and said I need to be represented.
I think that kind of human connection is particularly important for
all of our judges, and certainly he brings that to this court.
I would say to my colleague Senator Cohen, you will note from
his resume he has been an active Democrat, but you should not
have any fear, because he has always performed those political du-
ties with class and with style. And over all of these years, I never
heard him say anything nasty or unkind about any political race
that he was in of the opposition. I think that kind of spirit and af-
fection and support for the democratic system is very, very impor-
tant, and that is the kind of active Democrat that he has been.
Senator Cohen. It is pretty unusual in Louisiana? [Laughter.]
Senator Breaux. Yes, but despite that, he has been very success-
ful. That is a good point. But we are very pleased to present him
to the committee.
Ginger Berrigan is also a person I think that brings unique
qualifications to this committee. She is a person who is not only
well read, but well traveled, having lived in several different areas
of our country, and I think that is important, because it brings a
great deal of knowledge about what this country is all about.
You note that she has a degree in psychology, which is a good
background for our profession, as well as being on a court I think,
from the University of Wisconsin, a masters in journalism from
right here in Washington at American University, and a juris doc-
torate from Louisiana. So I think that type of blend is important
and very helpful to understanding the people and the cultures that
come before the court.
She also is a member and a partner in a very prominent firm in
Louisiana, the Gravel, Brady & Berrigan firm, which is well known
and well respected and has produced some outstanding legal schol-
ars for our State and practitioners.
She has also served in government, being on the Governor's Par-
don Board, as well as being a part-time legislative aide at a very
early age — because I see the date, Ginger — to the chairman of this
committee, Joe Biden, back — I will not say when, but about the
time I was coming to the Congress. So she has had experience both
in State government, here in Washington, and also worked as an
aide to Senator Harold Hughs, a deeply respected Senator from
Iowa.
She has had a lot of community activities which the resume
clearly points out, and a number of publications. This is a person
who brings a real expertise to the question of criminal law and the
rights and obligations and responsibilities of defendants, which is
going to be so important for the remainder of this century and into
the future.
11
So, without question, Mr. Chairman and Senator Cohen, I enthu-
siastically recommend both of these nominees. I would just point
out that Mr. Melancon also has the entire Parish of Avoyelles in
the back of me in the audience. It is a national holiday back home,
and I certainly want to join in that holiday.
Senator KoHL. Thank you very much. Senator Breaux.
Mr. Jefferson.
STATEMENT OF HON. WILLIAM J. JEFFERSON, A REPRESENT-
ATIVE IN CONGRESS FROM THE STATE OF LOUISIANA
Mr. Jefferson. Mr. Chairman and members of the committee,
I am pleased to join with Senator Breaux and Senator Johnston in
his absence in support of these two outstanding candidates.
I have come principally to talk about Ginger Berrigan, because
she is a constituent of mine and resides in New Orleans, a place
that I represent. But I want to take a moment to add my voice of
support to that of Senator Breaux for Tucker Melancon, who I have
known for a good long time.
Mr. Justice Holmes said something which comes to mind now,
and that is that the life of the law is not logic, it is experience. A
judge ought to bring a kind of breath of experience to the court, to
permit him, as Senator Breaux has said, to understand the varied
cultures and backgrounds and make sound decisions based on his
ability to identify with the people who appear before his court.
My experience with Tucker was as a legislator when I was in the
State Senate of Louisiana principally, and he worked to bring the
African-American population in our State into the mainstream of
the Democratic Party. His work is well regarded by all the folks in
our State, but particularly by those of us who were trying to find
a way to make our party more open and more cooperative and more
supportive of some of the aspirations of the African-American com-
munity.
So I am proud to be a part of this nomination process and to sup-
port his nomination, as well.
Turning to Ginger Berrigan, I believe she will be an excellent ad-
dition to the Court for the Eastern District of Louisiana, and I ap-
plaud President Clinton for nominating her. Our district court has
had a long list of distinguished jurists, judges such as J. Skelly
Wright, Herbert Christianberry, Fred Casserbry, Fred Hebee, Lan-
sing Mitchell, and Alvin Rubin, for whom I had the pleasure of
clerking years ago, just a few of the outstanding judges who served
on this court. I am convinced that Ginger Berrigan will serve in the
tradition of these outstanding jurists.
Mr. Chairman, I have known Ginger Berrigan for quite a few
years. She has a well-earned reputation for competency and integ-
rity in our legal community, and I feel certain that she will distin-
guish herself as a scholar on the bench.
But as Judge Alvin Rubin used to say so often, a judge must be
more than a thinking machine, a judge must have an unswerving
commitment to equsd justice under the law. In this regards. Ginger
Berrigan has few peers. She is a virtual champion of civil liberties
and civil rights for all people. She has spent her life confronting
discrimination and winning.
12
Along the way, she has had the grace and the charm to turn foe
to friend and, at the very least, to earn the respect of her adversar-
ies. Ginger has that rare combination of brilliance, compassion and
experience that makes her unusually well-suited for the Federal
court. She will do more than add diversity to the court. She will
make a real difference in the dispensation of justice there.
For these reasons, I firmly urge this committee to recommend
Ginger Berrigan to the full Senate for confirmation to the Federal
District Court in New Orleans.
Mr. Chairman, I appreciate the opportunity to appear before you
and the committee, and I would be glad to answer any questions
you might have. But I think John Breaux probably covered every-
thing that needed to be dealt with here today.
Senator KoHL. We thank you, Mr. Jefferson and Senator Breaux.
They are wonderful introductions, and we will get back to you folks
in just as minute.
We would now like to call Judge Judith Rogers to the stand. She
has been nominated to be circuit court judge for the District of Co-
lumbia Circuit Court of Appeals.
Judge Rogers, would you raise your right hand: Do you swear
that the testimony you shall give in this proceeding shall be the
truth, the whole truth, and nothing but the truth, so help you Grod?
Judge Rogers. I do.
TESTIMONY OF HON. JUDITH ANN WILSON ROGERS, OF WASH-
INGTON, DC, TO BE U.S. CIRCUIT JUDGE FOR THE DISTRICT
OF COLUMBIA
Senator Kohl. How would you like to introduce some members
of your family to us at this time, please.
Judge Rogers. Thank you, Mr. Chairman. I want to thank you
for chairing these hearings.
My only regret is that my parents are unable to be with me
today. Hazel Thomas Wilson and John Louis Wilson, Jr. They guid-
ed me and their guidance continues to help me address my task.
I am honored, however, to have with me today members of my
court, members of the District of Columbia Court of Appeals, the
Hon. John M. Ferren, the Hon. John M. Steadman, the Hon. John
Kern, and the Hon. James A. Belson.
I would also like to acknowledge the presence of my hard-work-
ing secretary, Denise Lewis, my law clerks, and my special assist-
ant.
Thank you, Mr. Chairman.
Senator KoHL. Thank you.
Judge Rogers, if you are confirmed as an appellate judge, at
some point you may be faced with applying a Supreme Court prece-
dent with which you do not personally agree. Would you consider
yourself bound to act by such a precedent?
Judge Rogers. Yes.
Senator KOHL. Of course, you will also be faced with cases in-
volving issues on which the Supreme Court has not ruled. In many
of those cases, however, you will have decisions from the District
of Columbia Circuit on which to rely. Under what circumstances,
if any, do you believe that an appellate judge should overturn
precedent within his or her own circuit?
13
Judge Rogers. I would be bound by the opinions of the circuit,
and only in those extraordinary cases where the en banc court
overruled a decision by a three-judge panel would I be in a position
not to follow an outstanding decision of the circuit.
Senator KOHL. Judge Rogers, as chief judge of the District of Co-
lumbia Court of Appeals, you delivered a speech discussing civil
justice reform and the problems facing the District of Columbia
court system.
As you know, Congress passed the Civil Justice Reform Act in
1990. The goal of this legislation is to streamline the judicial proc-
ess and to make it more accessible, affordable, and fair. In your
view, what role do judges play in controlling the pace and the con-
duct of litigation?
Judge Rogers. Mr. Chairman, as my speech indicated, in the
District of Columbia we have taken a number of steps to ensure
that judges do become actively involved in the pace and control of
litigation. For example, in our trial court, which is a trial court of
general jurisdiction, the chief judge of that court shifted from the
former system to an individual calendar system in the civil divi-
sion, so that a judge keeps the case from the beginning to the end.
In addition, case management, case tracking has been a part of
the trial court and, indeed, of the appellate court as a way of mak-
ing certain that the cases move according to schedule. We have
spent considerable time on studies, as well, on the application of
computer technology to assist the judges, as well as judicial train-
ing. And I think the type of individual calendar and case manage-
ment successes in the trial court and, indeed, in the appellate court
indicate that individual judges can make a real difference in the
pace and conduct of litigation.
Senator KoHL. Well, what kind of steps will you take to best con-
trol your own docket?
Judge Rogers. As an appellate judge, I have a number of proce-
dures that I trust I will apply on the Federal court, as I have on
the District of Columbia Court of Appeals. I keep a very close tab
of the cases that are assigned to me and the cases that I am a
member of the division. I have the assistance of a law clerk to as-
sure that I get timely legal memoranda. I assume that those same
procedures would work well on the circuit court, and I think my
colleagues would attest to the fact that I am timely in producing
my opinions and commenting on their's.
Senator KOHL. Judge Rogers, since the inception of the Federal
Sentencing Guidelines developed by the Sentencing Commission
have been the subject of debate, largely because of concerns about
mandatory minimum sentences — in fact, one district court judge re-
signed, because, according to press accounts, he felt that the man-
datory guidelines were too harsh and too rigid.
As a Federal judge, what would you do if you were faced with
a situation where the sentencing guidelines called for you to im-
pose a sentence that you felt was too harsh?
Judge Rogers. I would be obligated to apply the guidelines, Mr.
Chairman. And certainly, as an appellate judge reviewing a district
court judge's application of the guidelines, I would be obliged to re-
view his or her apphcation, but to enforce the guidelines.
Senator Kohl. I thank you very much, Judge Rogers.
14
Judge Rogers. Thank you.
Senator KOHL. Senator Cohen.
OPENING STATEMENT OF SENATOR COHEN
Senator COHEN. Thank you, Mr. Chairman.
Judge Rogers, welcome.
Judge Rogers. Thank you.
Senator COHEN. I would like to explore some of your ideas about
the interpretation of the Constitution. I think you have decided at
least six cases involving constitutional issues, three of which in-
volved search and seizure.
One of them happened to be fairly controversial. I think it was
Cousart v. United States, right?
Judge Rogers. I am familiar with the case. I am not sure I agree
with the characterization.
Senator Cohen. As being controversial?
Judge Rogers. Yes.
Senator Cohen. Would you describe what the facts were of that
case?
Judge Rogers. As I recall, Senator Cohen, in that particular case
a police officer observed a car traveling at 30 miles an hour. The
car made a wide U-turn, then the car began going at 45 miles an
hour. At that point, the police officer put his emergency lights on
the hood of the car and followed the car. The car proceeded for two
long blocks, which the officer testified was tantamount to about six
blocks. The car stopped of its own accord. The officer had radioed
for help. The officer approached the car driver, his gun bolstered,
asked the driver to step out, and took the driver to his car about
25 feet away.
A second police car arrived on the scene. One of the officers, with
a rifle in his hand, on his knee and pointed upward, told the pas-
senger in the car to reach for the ceiling. The trial court found, and
the government did not dispute on appeal, that the passenger had
been seized.
The government asked our court to extend an opinion of the U.S.
Supreme Court that applied to car drivers who were stopped for
traffic violations to passengers of cars. Our court declined to do
that and, instead, a majority of the court decided that, contrary to
the requirements of the long-standing and often reaffirmed decision
of Terry v. Ohio, limiting the conditions under which a police officer
may seize a citizen, that the subjective view of the officer and his
concern for personal safety was a sufficient ground to uphold the
seizure of a gun that was found in the car.
That is my recollection, Senator, of the facts.
Senator Cohen. Did you write that opinion?
Judge Rogers. I wrote an opinion when it was before a three-
judge division. The court decided to hear the case en banc. I wrote
a separate dissenting opinion.
Senator COHEN. That decision was reversed on appeal, was it
not?
Judge Rogers. That is the effect of it, that is correct.
Senator Cohen. I am curious about the interpretation of it, the
very sterile factual statement you just gave. What was the neigh-
borhood like? Is that a factor that should be taken into account,
15
when a court is making a decision dealing with a police officer's on-
the-spot type of decisions?
For example, one of our panelists this morning, in introducing
Ms. Berrigan, I believe, quoted from Holmes who said the life of
the law has not been logic, but that of experience. He went on to
say that a page of history is worth more than a volume of logic.
One thing that many critics of our courts today seem to feel is
that there is an awftil lot of logic, but not a good deal of experience
is being reflected by the courts' decisions in many cases.
For example, if you have a situation in which there is a high-
crime neighborhood and in which there were seven police officers
killed during the preceding 30 days, would that be a factor that the
court should take into account in examining an officer's reasonable
actions under the circumstances in wishing to search a car for a
weapon?
Judge Rogers. The issue before me as an appellate judge was to
apply the decisions of the Supreme Court. The Supreme Court has
decided that there are certain limitations on officers when they
seize citizens. I indicated in my opinion that, of course, officers
have to take reasonable steps to protect themselves from safety,
protect themselves so that they are safe. Of course, they are acting
on our behalf to protect all of us.
That was not the issue in the case. The issue was where the Su-
preme Court has set out a test, is not the appellate court obligated
to faithfully apply the test enunciated by the Supreme Court,
whether or not we personally agree with it. And in my view, it was
our obligation and that is why I wrote my opinion as I did.
Senator COHEN. In other words, you were simply applying the
doctrine of stare decisis, and that did not reflect your personal
opinion in any way in terms of whether you felt the officer acted
reasonably under the circumstances?
Judge Rogers. The issue was did the officer have articulable
suspicion that the passenger engaged in unusual conduct such that
the officer could in his experience reasonably conclude that crimi-
nal activity was afoot. The officer never offered such testimony, the
trial judge never made such findings, the officer said he took out
his shotgun because he was concerned about his safety. It had
nothing to do with anything the passenger had done.
Now, as an appellate court, I am obligated, where it is conceded
by the Grovemment, where the trial court has found that a citizen
was seized, I am obUgated, as an appellate judge, to apply the test
that the Supreme Court has announced and repeatedly reaffirmed,
and that is all I did.
Senator COHEN. We talk about constitutional principles. I think
you would probably agree that the Constitution as written is not
locked in the concrete of the originsil time in which it was formu-
lated. You would agree with that, would you not? It evolves over
a period of time in terms of our interpretation, as we become either
more sophisticated or more morally conscious of certain practices?
There is an evolutionary interpretation of what was originally de-
fined, at least, in the Constitution. Would you agree with that gen-
eral statement?
Judge Rogers. My obUgation as an appellate judge is to apply
precedent. Some of the debates which I have heard and to which
16
I think you may be alluding are interesting, but as an appellate
judge, my obligation is to apply precedent. And so the interpreta-
tions of the Constitution by the U.S. Supreme Court would be bind-
ing on me.
Senator COHEN. In the absence of precedent?
Judge Rogers. In what context?
Senator Cohen. You are now faced with a constitutional issue or
interpretation of the Constitution that the Court has not ruled on
directly or has ruled on directly 50 or 60 or 100 years before. The
case has not come up specifically on that point, and you are not
necessarily bound by precedent in that case or it does not exist.
The question I have is do you believe that the Constitution is in
fact something that is subject to interpretation in a different time
and a different era? As society's attitudes change about certain
mores and practices, the interpretation of those original words also
change. I think you would concede that, would you not?
Judge Rogers. When I was taking my
Senator Cohen. Unless you are prepared to endorse Judge Bork's
interpretation of the original meaning of the Constitution, which
was severely criticized, because he seemed to be articulating a phi-
losophy that existed a century or so before.
Judge Rogers. When I was taking my master's in judicial proc-
ess at the University of Virginia Law School, one of the points em-
phasized was the growth of our common law system based on the
English common law judge system. And my opinions, I think if you
look at them, reflect that where I am presented with a question of
first impression, that I look to the language of whatever provision
we are addressing, that I look to whatever debates are available,
that I look to the interpretations by other Federal courts, that I
look to the interpretations of other State courts, and it may be nec-
essary, as well, to look at the interpretations suggested by com-
mentators. And within that framework, which I consider to be a
discipline, that I would reach a view in a case of first impression.
Senator Cohen. Do social mores play any role in your interpreta-
tion of a constitutional provision?
Judge Rogers. I am not sure I know what you mean. Senator.
Senator COHEN. What I mean is that, as we look at civil rights,
for example, over a period of time, we have expanded civil rights
in this country, and I think justifiably so. We have expanded inter-
pretations of provisions of search and seizure over a period of time.
As we have become more sophisticated, our interpretation of the
Constitution has changed. Justice Holmes or one of his prede-
cessors might have interpreted the specific language of the Con-
stitution differently.
The question I am really asking is: What happens when we go
the other way? What happens when a society is so overwhelmed
with fear of crime that they decide that sterner actions have to be
taken? Take for example, stop and frisk laws. I assume you might
have some problems with that particular policy in the practice of
certain police. I notice that Virginia just this year started the prac-
tice of setting up roadblocks during holiday periods, during Christ-
mas and New Year's Eve, to stop vehicles to check them for the
driver's sobriety.
17
So we are seeing concern about what is taking place in society,
and I am asking you whether or not that should or would have any
influence on your particular interpretation of the Constitution.
Judge Rogers. As an appellate judge, I have been faced with a
roadblock case, and I relied on Supreme Court decisions as to what
is the proper scope for a roadblock. I would do the same type of
thing with other issues. That is my role as an appellate judge, to
apply precedent and look for the closest analogy I can find.
Senator Cohen. A couple more questions. What is your opinion
about the minimum mandatory sentencing provisions that Con-
gress enacts? Senator Kohl asked you about this. What is your feel-
ing, as a judge, as to their utility?
Judge Rogers. I am aware, Senator, of some of the debate on the
pros and cons, and certainly before I was a judge I was engaged
in comment on them. But as a judge, I have been dealing with
them strictly from the point of view of legal challenges to them. I
have sat on a case where a mandatory minimum sentence was
challenged, and we upheld it.
Senator Cohen. What I am asking you is not whether you think
they are constitutional or should be upheld, but from your point of
view as a judge, what is their effectiveness? There is a good deal
of controversy right now in terms of the mandatory guidelines that
were adopted back in the early 1980's to minimize judicial discre-
tion in the imposition of sentences. Now we have Federal manda-
tory sentencing provisions, and some argue that they are now in
conflict and we are back to a chaotic situation. I am wondering, not
about your interpretation of their constitutionality, but your feeling
about their effectiveness, as a judge.
Judge Rogers. Well, as a judge, I have not been exposed to the
Federal sentencing guidelines. We do not have such guidelines in
the District of Columbia. We do have mandatory minimum sen-
tences and I have enforced them, as I mentioned, when the issue
has arisen.
Senator Cohen. One final question: In the State of the Union
Message this week. President Clinton supported a provision which
is now commonly known as three strikes you are out, or actually
three strikes and you are in. What is your reaction to such a pro-
posal? Is that something you would favor?
Judge Rogers. As an appellate judge, my obligation is to enforce
the laws that the Congress passes or, where I am now, that the
District of Columbia Council passes.
Senator COHEN. Assuming it is constitutional?
Judge Rogers. Assuming it is constitutional.
Senator COHEN. I think that is all I have right now.
Senator KoHL. Thank you very much, Senator Cohen.
Thank you much. Judge Rogers.
Judge Rogers. Thank you, Mr. Chairman.
Senator KOHL. We would like now to call Judge Michael Ponsor
to the stand. Judge Ponsor has been nominated to be district judge
for the District of Massachusetts. Would you please raise your right
hand: Do you swear that the testimony that you shall give in this
proceeding shall be the truth, the whole truth, and nothing but the
truth, so help you God?
Judge Ponsor. I do.
18
TESTIMONY OF HON. MICHAEL A. PONSOR, OF MASSACHU-
SETTS, TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF
MASSACHUSETTS
Senator KOHL. Thank you very much, Judge Ponsor.
If you have members of your family here, we would love to meet
them.
Judge Ponsor. I do. I am proud to have my mother Yvonne
Ponsor here with me this afternoon, and my sister, Valerie
Pritcher. My father Ward Ponsor is not able to be here, but he is
here in spirit. And my three children, my oldest Christian is in
California and is unable to be here, and my two little ones, Ann
and Joseph, who are 10 and 8, unfortunately are back in Massa-
chusetts with the flu. Otherwise, they would be here, as well.
Senator Kohl. Very good.
Judge Ponsor, you have been a magistrate for a number, of years
now. What do you perceive to be the primary differences between
your current position and a position as a Federal district court
judge?
Judge Ponsor. I think there are probably two primary dif-
ferences that I will be facing. One will be the increased caseload
and responsibilities of the U.S. district court judge, and the other
will be the responsibility for the conduct of felony jury trials, of
which a magistrate judge is not permitted to conduct. I have con-
ducted misdemeanor trials and a large number of civil trials, but
I have not sat on a felony jury trial, and I think that will be a dif-
ference.
Senator Kohl. Well, what areas of the law do you think you will
need to study up on to get up to speed, should you be confirmed
for this position?
Judge Ponsor. Well, I feel fortunate, because, as a magistrate
judge in a single-judge court in our rural area of Massachusetts, I
have handled many of the responsibilities of district court judges
already. The one area where I believe that I will need to look for-
ward to help from the Federal Judicial Center and from my col-
leagues on the court will be in the area of presiding over felony
jury trials, and I think that would be the main area of getting up
to speed.
I will also be responsible for handling bankruptcy appeals, as a
district court judge, which was not part of my work as a magistrate
judge, and I think that is another area where I will be putting in
some particularly hard work to get myself ready.
Senator KOHL. Judge Ponsor, your response to the committee
questionnaire indicates that throughout your career you have been
committed to the rights of the mentally ill. From your experience,
what have you learned about the problems facing lawyers dealing
with the issues that affect the mentally ill?
Judge Ponsor. Well, I think there are probably a couple of areas.
One is the separate area of actual legal rights, which can be very
complex, and that has to do with what sorts of procedural protec-
tions may be afforded to people who are suffering from mental ill-
ness, and what the court's responsibilities are.
There is a second aspect to it, and that has to do with community
acceptance, how much can we ask of our communities, how much
can we properly ask of our communities, and I believe that is an-
19
other area where work needs to be done by advocates on behalf of
the mentally ill, and people really need to have a dialog about what
is really best for people who suffer from these disabilities and what
is best for the community.
Senator KOHL. What can Congress do, in your opinion, to assist
in assuring that the mentally ill get adequate legal representation?
Judge PONSOR. Well, I think probably the primary thing is to
make sure that the judges who come before you are sensitive to the
problems, and make sure there is sufficient funding for such orga-
nizations as the Legal Services Corporation, so that they will be
able to assist problems. As you know, this population is largely in-
digent, and they suffer from a lot of the difficulties that indigent
people suffer from generally, and I think probably those two areas
would be the primary ones that come to mind for me.
Senator KOHL. Judge, you will probably be faced with cases in-
volving issues on which the first circuit has not ruled. How will you
approach cases on which the circuit has not ruled, and for which
there is no precedent?
Judge PONSOR. Well, if it has to do with statutory construction,
I would begin by looking carefully at the statute and at the legisla-
tive history of the statute. If it does not involve actual statutory
construction, then I will try to look at other districts or other cir-
cuits which might have had cases in the area, although my own cir-
cuit or district might not have handed down any decisions.
If I can't find any parallel decisions from other districts or other
circuits, I will try to find analogous situations and reason by anal-
ogy. If I cannot find that, then I am going to have to go back to
basic principles and try to remember that what we are ultimately
trying to do as judges is do something which is fair.
Senator COHEN. Why are you interested in this appointment?
Judge PONSOR. Well, I spent my whole life and have found my
life enriched from the time I was an undergraduate in high school
in public service, and I seem to have a bent for this kind of work
which permits me to contribute something to my community.
I love western Massachusetts. I love the people of western Mas-
sachusetts, and this seems to be the best way that I can give some-
thing back for the enormous privileges that I have enjoyed in my
life, and I really look forward to doing that.
Senator KOHL. Very good. Thank you very much.
Senator Cohen.
Senator Cohen. Protocol does not permit you to ask us the same
question, I might point out. [Laughter.]
Let me follow up with just a couple of questions. You mentioned
that in trying to arrive at an appropriate decision, you would look,
among other things, at legislative history. What do you look for in
legislative history? I am saying this by way of a caution to you. You
are aware that Justice Scalia does not hold a very high opinion of
legislative history and, as a matter of fact, he maintains it is a fig-
ment of our imagination. I would be interested in hearing what you
would look for in the way of legislative history.
Judge PONSOR. I agree that one has to be careful and sensitive,
when you are getting into legislative history, and one hopes, of
course, that the statute is clear on its face and you do not have to
get into it.
20
But I do find that it is sometimes helpful to look at the congres-
sional debates or the committee reports that describe a particular
piece of legislation, and that that is sometimes helpful. That is
where I go, to the Congressional Record, when I am looking at
Senator COHEN. Do you place more emphasis on what a commit-
tee chairman or ranking member says than you would upon some
nonmember of the committee? Because, as you know, a great deal
of debate takes place on the floor, but following the debate, mem-
bers insert extensive materials that are not uttered on the floor,
but are simply inserted for the record, which may lead you down
a labyrinth course to a dead end. So do you place any priorities in
terms of who you would look to in the way of trying to determine
what Congress really intended?
Judge PONSOR. To be honest, I try to look at the whole record,
and where it is so muddy that I cannot draw a real conclusion from
it, then I just have to go elsewhere. But it is remarkable to me that
there often is unanimity about a particular intent, and when you
can find that, I think it is very helpful.
Senator COHEN. The October 1993 issue of the Massachusetts
Lawyer Weekly reported your decision in the FDIC v. Huntington
Bank Corporation, and the quote was that it underscores the effec-
tiveness of the D'Oench Duhme doctrine in collection actions by the
Federal Deposit Insurance Corp. and its successors in interest. In
other words only those agreements in writing as authorized by the
board of directors of a particular bank will be regarded as being en-
forceable. Obviously, every one of us has an interest in seeing to
it that the FDIC and RTC in fact have this tool at their disposal
in order to protect the public's interest.
The question I have is, what about situations where you have
small vendors? You might have a plumber or a window washer,
and they do not have enforceable agreements and they are pre-
cluded under the D'Oench Duhme doctrine from bringing lawsuits.
Do you see any injustice in that particular case, where you have
the small vendors who do not operate on that basis?
Judge PONSOR. I believe there is a potential for injustice. The
D'Oench Duhme doctrine in section 1823 is one of those two-hand-
ed arguments. On the one hand, you want the FISC to be pro-
tected, you want the FDIC to be protected from the effect of secret
side agreements.
On the other hand, there is a very real potential for unfairness.
The Huntington case for me, fortunately, fell right in the heartland
of D'Oench Duhme. It wasn't a supplier. It was a situation where
there was a promissory note, and so on, and I felt bound by the
50-year-old Supreme Court precedent and Congress' statute. But I
can foresee situations where the D'Oench Duhme doctrine may con-
ceivably be overused, and I think we need to be sensitive to it.
Senator COHEN. I am glad to hear that. I introduced a bill to try
to correct that, as a matter of fact, just so we take into account the
little folks who do not have the advantage of having written con-
tracts.
One final question: Your experience has been rather limited in
the field of criminal trials. I suspect that you are going to have an
increased workload in that regard. What are you going to be doing
21
to get yourself in a position to be able to decide these kinds of
cases, which may amount to a flood tide in the coming years?
Judge PONSOR. I have two things in my background which will
help me. One was that I was a criminal defense attorney when I
was in private practice, and I tried felony cases in Federal court
as a practitioner.
Second, as a magistrate judge, I have presided over a number of
evidentiary hearings involving motions to dismiss and have dealt
with all of the preliminary matters right up to trial as part of my
responsibilities as a magistrate judge. So I think that will give me
a leg up, so to speak. Then, second, as I said before, in fact this
Monday I am going to Richmond to begin a week of hard work pre-
paring for what I hope will be my new responsibilities. I think that
and the assistance of other judges will give me all the hope that
I will need to get ready.
Senator COHEN. As I understand it, you were appointed to an ad-
visory group in Massachusetts, Federal District Court, Civil Justice
Reform Committee
Judge PoNSOR. Yes, sir.
Senator Cohen [continuing]. Which made recommendations
about implementing the Civil Justice Reform Act of 1990, that Sen-
ator Kohl mentioned?
Judge PoNSOR. Yes.
Senator Cohen. I think the Massachusetts group went quite far
in terms of what it recommended. The question is what rec-
ommendation do you have in terms of trying to reform the rules?
Judge PONSOR. I think, first of all, you need very close case man-
agement. When I was appointed in 1984 a magistrate judge in
Springfield, we had over 800 pending civil cases. I am happy to say
that we now have approximately 330 pending civil cases, and I
think part of the explanation for that reduction is in very close case
management by the judge. I am a hands-on judge. I am setting
schedules, I am assisting in settlement all the time. I think that
is very important.
I think our new local rules which were enacted pursuant to the
Civil Justice Reform Act and the changes that have recently come
into effect in the Federal Rules of Civil Procedure will make discov-
ery a lot faster and a lot cheaper for a lot of litigants, and I think
that is something that judges should rightly have on their mind.
We need to move our civil cases along and we need to try to move
them along in a way which reduces expense, so that our Federal
courts remain open to little people, ordinary people, as well as
large corporations.
Senator Cohen. That is all I have, Mr. Chairman.
Senator KOHL. Thank you very much. Senator Cohen.
Thank you very much, Judge Ponsor. You are excused.
Judge Ponsor. Thank you.
Senator KOHL. I am going to be leaving this hearing right now.
I have enjoyed being here, and I wish all the nominees the very
best of luck and good fortune.
Senator Metzenbaum is going to be sitting in my stead. Senator
Metzenbaum.
Senator Metzenbaum [presiding]. Our next nominee is Leslie
Brooks Wells.
22
Ms. Wells, do you solemnly swear to tell the truth, the whole
truth, and nothing but the truth, so help you God?
Judge Wells. I do.
TESTIMONY OF HON. LESLEY BROOKS WELLS, OF OHIO, TO BE
U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO
Senator Metzenbaum. Would you like to introduce your family
and perhaps the Campbells, as well, and anybody else that is with
you?
Judge Wells. Thank you very much.
I think you met my daughters, Kristin Brooks of Cleveland, OH,
and Caryn Brooks of Berkeley, CA, representing Lauren, my
daughter, and Stan Miller, and my grandchildren, Storm and
Tenaya Miller of Mt. Shasta, CA, as well as my son, Tom Brooks
and his wife, Francesca, and my grandson Riccardo of Lugano,
Switzerland.
Also my brother and sister-in-law, Fred and Adrienne Brooks of
The Plains, VA, and my cousins, Jim and George Anna Hilton of
Salisbury, MD, are here with me.
My bailiff, Rob Pacsi, and Tom and Peg Campbell are here from
Cleveland, OH, Madelaine Fletcher of Baltimore, MD, Bob Fenton
of Alexandria, VA, and Wendy Leatherberry of Washington, DC.
Senator Metzenbaum. Let me ask your daughters to stand.
Judge Wells. Again, Caryn and Kristin.
Senator Metzenbaum. We are happy to welcome all of them and
happy to welcome you.
Judge Wells. Thank you, sir.
Senator Metzenbaum. Do you have a brief opening statement
that you would care to make?
Judge Wells. No. Thank you very much.
Senator Metzenbaum. Judge Wells, Congress is contemplating
legislation aimed at reducing the overcrowding in Federal courts,
by allowing Federal judges to assign some of their smaller cases to
court-appointed arbitrators. Some people have expressed concerns
about this approach, saying that it infringes upon the rights of citi-
zens to a jury trial.
On your questionnaire, you listed the case of Essef Corporation
V. Mordecki Driori as one of your most significant opinions. That
case involved the confirmation of an award made by the American
Arbitration Association in a matter concerning a patent license dis-
agreement. Given your experience both as a judge and a litigator,
what are your thoughts on the proposal to use court-appointed ar-
bitrators?
Judge Wells. Certainly, as we have seen many, many attempts
at trying to find alternatives for people to resolve their disputes,
arbitration is one of the time-honored ones and has great value. I
particularly find when it is contracted for by the parties in ad-
vance, that it is a wonderful assistance to having people anticipate
how their problems will be resolved in a swift way.
On the other hand, the right to be able to proceed in court is a
very important right, and we have been able — and I think our dis-
trict in the northern district has set some wonderful standards —
to use early dispute resolution, mediation, types of arbitration, and
summary jury trials as efforts to give people, once they are at the
23
courthouse door, an option to proceed. But it still preserves for peo-
ple who feel that they need their day in court the opportunity to
go forward.
All I can say is that I am pleased to be moving to a bench hope-
fully that has the full facilities to offer these options. They are im-
portant in a time like this.
Senator Metzenbaum. But it would always be optional with the
litigants?
Judge Wells. But they are optional with the litigants, and I
think many people take advantage of them. It is sort of as if trial
has become to a client, as somebody has said, sort of like surgery
would be to a patient. It can be very important, but it is not the
only way to resolve disputes, and in America we need to make
available as many as possible.
Senator Metzenbaum. In recent years, much has been said about
Federal courts' increased caseload generally and the resulting prob-
lem of docket backlogs. If confirmed, what steps, if any, would you
take to ensure that your docket progresses at as quick a pace as
is fair and reasonable?
Judge Wells. I am fortunate in some respects to anticipate being
able to follow a judge who went over several years ago from the
bench I am on, which is one of the busiest in the country, really,
and so we try very hard, but with extraordinarily limited resources
to do lots of things that manage the docket.
The closest thing I know to say, as a trial judge, is you stay on
top of it. Everybody who works with you in your courtroom stays
on top of that docket, and you in an early point in any case have
an opportunity — I do it personally, rather than through surrogates
or law clerks — to sit down with the lawyers, so that you can get
a good feel for what direction a case needs to go, and that has
proved useful. I think I will be able to apply those things, but cou-
ple them with a system which is much more prepared to accept —
as our district court system is, and I think with some of the re-
forms that have come along, it is particularly so — prepared to ac-
cept the substantial increase in dockets.
Senator Metzenbaum. Some Senators, as well as some com-
mentators, have criticized judicial opinions that they label the work
of judicial activists. These critics recognize the importance of stare
decisis, judicial precedent, and sometimes these two goals, to avoid
what some may call legislating from the bench and to follow settled
law, may conflict. Do you have any thoughts on the importance of
stare decisis and the need to follow settled law?
Judge Wells. We do follow it. I have been a judge 11 years. I
sit in a State where I am constrained to follow the law, and I have
done that. That is our primary obligation, is to follow the law.
Senator Metzenbaum. Do you think at times a judge has a case
before him or her and it cries out for a specific kind of a conclusion,
and yet, based upon stare decisis, the decision would fall the other
way? What does a judge do then?
Judge Wells. Well, it is one of the great challenges of being a
judge, is that you understand your primary obligation, and it may
be that you feel as the case develops that there might be some
other way to go. But it is a fairly common occurrence that one has
24
to look seriously at being constrained by the law. Yes, we are con-
strained by the law.
That is different I think in your question than the unprovided
case, where you get a situation where there has never been any-
thing you can lean on. I think what you are suggesting is some-
thing different. And certainly there was a period in this country
where there was a great expansion in what people wanted to do,
but it is not my judicial philosophy.
Senator Metzenbaum. Senator Cohen.
Senator Cohen. Thank you very much.
Judge Wells, I do not profess to understand Louisiana politics,
and even perhaps less Ohio politics. But I was curious, do you have
an election system in
Judge Wells. We have a very vigorous election system, very vig-
orous for the judges. I sit in a county where 20 of us will be up
for election this term, and there are legions of people who run.
There is no incumbency rule. I have gone through many elections.
Senator Cohen. We do not have such a system in Maine, except
for probate judges. When you run, how do you run a campaign for
the court? Do you base it on your record? You have had an out-
standing record. I think 7 of your opinions out of 147 were ap-
pealed, a pretty outstanding record, I would think. What do you
run on?
Judge Wells. I think 7 were reversed out of 147 appealed or
something. It is a very challenging thing to do and you run it very
close and tight and with good advisors. Actually, we formed com-
mittees who do much of it. But it is a good question.
Senator Cohen. Not the mechanics of running, but the basis
Judge Wells. Well, we cannot say anything really except judge
us on our record. Yet, let me say this: I know it is a highly criti-
cized system, but it is one I have been in for a long time. It does
do something that overcomes the isolation that judges commonly
feel. When I go into the community, which I do on many occasions,
I am a lightening rod for all of their concerns about the justice sys-
tem.
Of course, I cannot do anything about those concerns except di-
rect them to the people who can. But it does mean that the courts
feel to the people as if they are their courts, and I think that is
something that you could lose in an isolated position where judges
were kept away from people. But you are correct, it is an awkward
campaign. There are many, many decisions one makes as a judge
not to do things that others urge you to do, because you are a
judge.
Senator Cohen. In other words, you do not go out on the cam-
paign stump and say I am for law and order or I am for greater
police protection. What do you do?
Judge Wells. No, we are governed by the canons. We are gov-
erned by the canons, and our canons in our State follow the model
of the canons here, with the exception that they recognize that we
are in a State with partisan primary races for judges who must run
flat-out open each time. There is no retention. So it is challenging.
Senator CoHEN. And somebody running against you, do they hold
up your written opinions?
25
Judge Wells. Sometimes they just go on television and show
slamming jail door cells or something and put their name across
the screen. You know, it can get very down and dirty. [Laughter.]
Senator COHEN. You have a State in which you have two Demo-
cratic Senators, and we had a Democratic President elected in
1992. I was wondering whether or not you got caught up in the pol-
itics of that somehow. As I understand, you ran for the supreme
court?
Judge Wells. I ran in the contested primary on the Democratic
ticket for the supreme court, and I was the endorsed Democrat in
that race. I lost it, but very narrowly.
Senator Cohen. Do you have a judgment as to why? What were
the issues? Was it something about your record?
Judge Wells. Talk to your colleague sometimes and maybe he
has more insight than I do. No, it was not about my record. But
I ran a very constrained campaign, as I feel is proper. So no tele-
vision maybe would be part of your answer.
Senator Cohen. Senator Metzenbaum raised the issue about ap-
plying stare decisis, and what you would do in the absence of some
applicable case right on point. I was trying to explore with Judge
Rogers earlier the situation in which we want our judges to be in-
sulated and protected against public opinion. That is the reason
why we are protected by life tenure.
But do you draw a distinction between public opinion and what
Holmes might call the "felt necessities" of the time? In other words,
in your own mind, are you able to distinguish, or is there a distinc-
tion between what is taking place currently as far as public opin-
ion, and what you might determine to be something so compelling
in the way in which society is drifting, whether left or right, that
you would feel compelled to respond to that?
I am not arguing one way or the other whether you should be
more to the right or the left, but obviously there is a political swirl
taking place in our society, and always has and always will. What
is your opinion about a situation in which you do not have a prece-
dent and you are free to exercise some judgment in this particular
field.
Do you take into account what the people are thinking? Is that
something that should be dismissed out of hand, as someone who
has run for reelection as a judge? Do you listen to what they are
saying, or do you say, wait a minute, I cannot listen in this case,
I know there is a problem out there, I know there is violence — I
know all of this, but I am taking a very academic approach and I
am insulated against the felt necessity of the time?
Judge Wells. Fortunately, I am a trial judge, and so I would say
do I let that influence me? No, I cannot. I am not permitted to do
that under my oath. I follow the law and I follow it as it comes to
me.
Senator COHEN. The law is unclear.
Judge Wells. When the law is unclear, then it is a different in-
quiry. I do not take that line of inquiry. When there is a case
where the law is cloudy, then one tries to clarify it. If there is a
case where there is no provision in the law — and that happens oc-
casionally, which I call the unprovided case — then that is a little
bit of a different analysis.
26
But it comes down to the same thing. We have very narrow re-
sponsibiHties. Find the intent, if it is not clear on its face. If it is
clear on its face, that is the intent, whether there has been another
case in the court of appeals or not. If it is not and it is a generaliza-
tion, then one tries very hard to understand what the legislative
intent was, and I think we have had some discussion about ways
of doing that. But one looks for parallels, if it is not a question of
a statute.
Senator COHEN. I am not even talking about legislative intent.
You have a factual situation in which you are a trier of fact now.
Judge Wells. All right.
Senator COHEN. You are looking at the actions of a police officer
under a certain set of circumstances and you listen to the entire
presentation of facts, that the police officer is in a very dangerous
area with lots of shootings of police officers in recent times. Do you
take into account their actions within the context of the world in
which they have to function?
Judge Wells. Senator, this is my daily bread. I am a very busy
felony court. As I understand the law in my jurisdiction, no.
Senator Cohen. You do not take that into account?
Judge Wells. No, not what you are describing.
Senator COHEN. You participated in the Ohio Supreme Court and
the Ohio Bar Association Task Force on Gender Fairness?
Judge Wells. I did.
Senator COHEN. The Senate last year passed the Violence
Against Women Act, sponsored by Senator Biden and cosponsored
by a number of us on the committee, and one of the titles of the
bill is the Equal Justice for Women in the Courts. It was in re-
sponse to a number of task force reports that we had on wide-
spread gender bias in the courts, particularly in the case of rape
and domestic violence. We would provide funds for education and
training programs for Federal judges and court personnel.
I would like the benefit of your own experience in terms of deal-
ing with the courts. Is there gender bias, in your judgment, in rape
cases and domestic abuse cases? If so, should we spend the kind
of money that we are about to authorize for training judges and
court personnel in dealing with it?
Judge Wells. I have been privileged to be part of some of the
training as a subject. I mean I have gone to sessions. In Ohio, we
train our judges in gender bias. I think it is helpful.
Senator COHEN. You would recommend that we continue to fund
it?
Judge Wells. I think people basically just need to hang all their
biases at the door when they walk in a court room, and I think that
holds for all the staff in the justice system, from the person who
types something in an order to the person who is the judge.
Senator COHEN. That is all I have. Thank you very much. Judge
Wells.
Senator Metzenbaum. Thank you very much. Senator Cohen.
Thank you very much, Judge. We will see if we cannot move your
confirmation process along.
Judge Wells. Thank you.
27
Senator Metzenbaum. Our next nominee is Marjorie Rendell. Do
you solemnly swear to tell the truth, the whole truth, and nothing
but the truth, so help you God?
Ms. Rendell. I do.
TESTIMONY OF MARJORIE RENDELL, OF PENNSYLVANIA, TO
BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
Senator Metzenbaum. Ms. Rendell, do you have any opening
statement you would care to make?
Ms. Rendell. No, I do not, Mr. Chairman, other than the fact
that I am privileged and honored and very pleased to be here.
Senator Metzenbaum. We are happy to have you with us.
Do you have members of your family and friends here, and would
you like to introduce them?
Ms. Rendell. Yes, Mr. Chairman, I would like to. I believe you
already met my son Jesse who is here. My husband Ed is expected
any minute. He had to go to a conference that is being held in
Washington, so he will be here shortly, I am sure.
My cousins, the Ramseys, Lisa, Jean and Jill are here, as is a
law clerk in waiting, Dan Gruen, who is a lawyer here in the Dis-
trict who hopefully in several weeks would be helping me on the
bench.
I would like to note the absence of my father who is in North
Carolina; my sister who, but for the weather, would have been here
from North Carolina; Beth Cummings; and my mother who passed
away, as a matter of fact, the day that I was nominated for this
position, but she is here in spirit.
Thank you, Mr. Chairman.
Senator Metzenbaum. Your son is how old?
Ms. Rendell. He is going to be 14 in March.
Senator Metzenbaum. Stand up, please, young man. What is
your name?
Ms. Rendell. His name is Jesse.
Senator Metzenbaum. Do you think your mother will be a fair
judge?
Senator Cohen. Wait a minute, is he under oath here? [Laugh-
ter.]
Senator Metzenbaum. Then I think we will move forward with
the confirmation process.
Ms. Rendell. I guess he will get that Genesis game after all.
[Laughter.]
Senator Metzenbaum. Your questionnaire indicates you engage
in many public service activities, such as the Visiting Nurses Asso-
ciation and the mentoring and counseling of college students. Given
your experience, do you think that there should be a mandatory re-
quirement that lawyers must engage in pro bono activities, or do
you believe the voluntary system works at present?
Ms. Rendell. Mr. Chairman, I believe you cannot force people
to do good, and I believe that mandatory requirement of pro bono
activities does not get to the heart of the matter. I believe that our
pro bono service should be on a voluntary basis, but at the same
time I believe that the legal profession should encourage voluntary
service and, therefore, I am in favor of the ABA's recent resolution
28
that makes an aspirational goal for each lawyer of 50 hours per
year of pro bono service. So I believe that our profession has re-
sponsibility to encourage the voluntary pro bono service.
Senator Metzenbaum. You have been in practice most of your
career, and most of your experience I note has been in bankruptcy
law. If confirmed, you will be faced with a docket of criminal, as
well as civil matters, including constitutional, employment, and
civil rights issues. Given your background, pretty much in bank-
ruptcy, what steps do you plan to take to familiarize yourself with
those areas of law in which you do not have that much experience?
Ms. Rendell. I am taking advantage even at this time of the re-
sources of the Federal Judicial Center and am reading up on dif-
ferent areas, especially the criminal area where I really have no ex-
posure. I will be going to judge school next week, as well, and plan
to do a lot of reading in that area and other areas, as well.
We also have a wonderful bench in the Eastern District of Penn-
sylvania, and my hopefully soon-to-be colleagues, many of them
have offered assistance and I have already started talking to some
of them and also to some of my colleagues. In fact, one of my part-
ners, Michael Beilson, who was U.S. attorney in the eastern dis-
trict, to try to get up to speed. It will be a challenge, it will be a
learning experience, but I believe I am ready for that challenge and
looking forward to it.
Senator Metzenbaum. With your experience in bankruptcy, this
does not necessarily come under your jurisdiction as a Federal
judge, but this Senator has long had the feeling that there was
kind of in-breeding in the bankruptcy courts where the lawyer for
the trustee and the lawyer for the creditors and the lawyer for the
bankrupt, they just move around back and forth and one hand
washes the other, and nobody worries too much about preserving
the assets. Do you have any thoughts on that subject?
Ms. Rendell. Yes, Mr. Chairman. Prior to the 1978 Bankruptcy
Code, the Bankruptcy Act which had been in force since 1933 really
left us open as a system to that kind of criticism, and it was per-
haps the case.
But with the advent of the 1978 code, different specific respon-
sibilities have been given to different parties, and I think that we
are doing much better and that this tarnished reputation should
not continue. However, at the same time, we have not had effective
tools within the bankruptcy system for case management, that is
moving cases along on a fast or at least appropriate track, so that
the backroom dealing or the discussions among the various parties
are the way that things have moved.
But I will say that with the Senate bill now pending, we hope-
fully will be given case management tools such as the presumption
of the filing of a plan within 1 year for every case, such as a new
fast-track chapter 10 proceeding, whereby small cases move for-
ward. I think the diligent time advancing of cases and the judge's
monitoring of those cases will help do away with a lot of the, as
I say, tarnished reputation or cronyism that I think has been asso-
ciated with the bankruptcy system in the past.
Senator Metzenbaum. Thank you.
Senator Cohen?
29
Senator Cohen. Just a couple of quick questions on bankruptcy.
Are there too many priorities set forth in the law as far as pref-
erences under the Bankruptcy Act, so that by the time you get
through all the priority creditors, there is nothing left over for any
of the unsecured creditors?
Ms. Rendell. That is an interesting question, and I am wonder-
ing if legislation has been thought of to do away with some of
them. I cannot think of any of the priority claims that really should
not be there. I understand that some might have reluctance be-
cause of the trickle-down theory, and if there is nothing there, it
is not right for creditors.
Yet we have very good priorities. We have priorities for taxes, we
have priorities for ERISA claims, we have priorities for costs and
expenses of administration, which must be borne or there definitely
will be nothing there for trade creditors.
So while you might criticize that, because that is what has hap-
pened, I believe the legislature would be hard-pressed to whittle
away on any of those or limit them, because I believe that maybe
could do more disservice to trade creditors in the end.
Senator Cohen. What about the effectiveness of chapter 11, has
it served a valid social goal?
Ms. Rendell. There has been a lot of commentary in the last 18
months about chapter 11 and that it has not served a goal. Again,
I would say exactly as I said to the chairman, that the goal of chap-
ter 11 should be to come out of chapter 11. It should not be to lin-
ger. And to the extent that a judge in a given case or the attorneys
in a given case let it linger, then they are doing a disservice to
chapter 11.
So I believe that with the passage of S. 540, that we will have
tools that will move it along, and I think will make a lot of the
commentators think twice about just abandoning this as a system.
I do not think there is anything wrong with the system that we
working diligently and working through effective case management
cannot overcome.
Senator Cohen. That is all I have, Mr. Chairman.
Senator Metzenbaum. Thank you very much, Senator Cohen.
Senator Specter.
Senator Specter. How do you hke being a witness?
Ms. Rendell. Actually, being a witness is a lot better than an-
ticipating being a witness. Senator. [Laughter.]
Senator Specter. Your answers are very good, Ms. Rendell, and
I do not have any questions for you, because, as I said earlier, I
have known you a long while and have total confidence in your
ability to handle the job.
I would make one comment that I heard Senator Thurmond
make in 1982, at one of the first Judiciary Committee hearings I
attended, where there were two judicial nominees from Pennsylva-
nia testifying. Senator Thurmond asked the question: Do you prom-
ise to be courteous, if you are confirmed? And I thought to myself,
what kind of a question is that? Who would not answer that in the
affirmative?
Of course, both nominees answered it in the affirmative, and
then Senator Thurmond said, the more power a person has, the
more courteous that person should be.
30
Senator Cohen. Speak into that machine there, will you?
[Laughter.]
Senator Specter. You mean pull it closer?
Senator COHEN. Senator Thurmond always admonishes us to
speak into the machine.
Senator Specter. Among other things. [Laughter.]
I am in my 14th year now here and I have not heard anything
wiser than that said in the time I have been here. I believe there
is a problem with judges, maybe even with Senators, perhaps less
so with Senators who have to run for election. Although there is
some consideration to limit Federal judicial positions to 6-year
terms and give Senators life tenure. [Laughter.]
But there is a real problem with judges having life tenure not to
remember what it was like not being a judge, and I think that is
something that has to be remembered. There have been a great
many judges appointed, about 30 in Pennsylvania since I have been
in the Senate, and I have to say that I get some complaints about
some of those. So I always want to make Senator Thurmond's
point.
Ms. Rendell. I could not agree more with that. I think self-re-
spect for the individual, understanding the traumas that the law-
yers, the litigants, and the jury is going through and empathizing
with them, and not engaging in belittling, that to me is so fun-
damental to our system. And I think that the concept of life tenure
should instead be that you have security in order to accomplish
something while you are there, not security that would make you
feel self-important. So I feel that those words are well spoken, and
I hope and believe I can carry them out.
Senator Specter. I appreciate that response, and I think that is
the essence of life tenure: to give independence so you can carry on
your role as a judge. I look forward to seeing you do just that.
Ms. Rendell. Thank you so much. Senator.
Senator Specter. Thank you, Mr. Chairman.
Senator Metzenbaum. Thank you very much.
Ms. Rendell. Thank you, Mr. Chairman. Senator Cohen, thank
you.
Senator Metzenbaum. Mr. Thomas Vanaskie: Mr. Vanaskie, do
you swear to tell the truth, the whole truth, and nothing but the
truth, so help you Grod?
Mr. Vanaskie. I do.
TESTIMONY OF THOMAS VANASKIE, OF PENNSYLVANIA, TO BE
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF
PENNSYLVANIA
Senator Metzenbaum. Would you like to introduce your family,
Mr. Vanaskie?
Mr. Vanaskie. Yes, I would, Mr. Chairman. Thank you very
much.
I only brought a pad with me, because I did not want to forget
anybody. I have with me and have already been introduced to you
the rock of my life, my wife Dottie, and my children, Diane who
is 14, Mark who is 12, and my son Tommy who is a little over-awed
by the whole process. He is 10 years old.
31
I am proud to be here, sir, to introduce my parents: My father,
who is a Pearl Harbor survivor, and my mother, John Vanaskie
and Dolors Vanaskie. And I have here my mother-in-law and fa-
ther-in-law. Bob and Edith Williams; my brother-in-law and sister-
in-law, Bobby and Marsha Williams are here with their nephew
Scott, who is a senior in high school. My very, very dear friends
from home, the Helbachs, Karen and Mike and their children Jill
and Mike, Jr., are here, as well.
My colleague in practice in Scranton, Tommy Brown is here, and
my colleague in practice in Washington, Joe Artebean had been
here. And also I am really pleased that two very distinguished at-
torneys from the District of Columbia who I have practiced with on
some difficult matters have stopped over, Dave Eisenstadt and Dan
Joseph.
Senator Metzenbaum. Do any of you think that Mr. Vanaskie
will not be a fair judge, if confirmed? If you do, you had better
leave the room promptly. [Laughter.]
Mr. Vanaskie, would you care to make an opening statement?
Mr. Vanaskie. I do not have any opening statement, Mr. Chair-
man, other than to express my gratitude to the President for the
confidence he has expressed in me in nominating me for this posi-
tion of tremendous responsibility, to express my thanks to Senator
Specter and Senator Wofford for their kind words of support they
offered today, and to commend the committee and its staff for
bringing this nomination to a hearing so promptly after the recess.
Senator Metzenbaum. Mr. Vanaskie, I heard Senator Wofford
spell out some of your background, and some of it passed over me.
Would you just give me a little bit of a resume on that?
Mr. Vanaskie. Mr. Chairman, I grew up and I have four brothers
and two sisters. It was a large family in a very, very small house,
half-double, in a little coal mining town called Schmoken. My dad
is a bricklayer and, as a bricklayer, especially in that area, it was
seasonal employment and it was tough going. My mother worked
in a shirt factory.
And at an early age, we had to work and I have worked since
I can remember. I have worked, of course, as a paper boy and then
in the circulation department of a newspaper, I have flipped ham-
burgers, I have washed dishes, I have worked in a hat factory, I
have worked in a shirt factory, in a warehouse, I worked as a con-
struction laborer. I think the hardest job I ever had was planting
trees in strip-mine reclamation projects. It does not sound like hard
work, but digging in rock and planting trees in rock is very hard
work.
I have also had great experiences both in law school and being
able to clerk as a first-year law school student for Judge Genevieve
Blatt, who was on the commonwealth court, a very distinguished
member of our commonwealth court, which is an intermediate ap-
pellate in our State. And I have worked in a State agency and I
have worked for a Republican State Senator in Pennsylvania, as
well, while I was in law school.
Senator Metzenbaum. A very interesting background, and it cer-
tainly gives you a broad base from which to become a jurist.
Your questionnaire states that since 1985, 100 percent of your
practice has been civil litigation. If confirmed for a position on the
32
Federal bench, you will preside over cases which may include drug
trafficking, major Federal and civil rights violations, and constitu-
tional issues. That is a little bit different from civil litigation, and
my question is do you have any steps that you plan to take in order
to familiarize yourself with those areas of the law on which you
may lack experience?
Mr. Vanaskie. Yes, Mr. Chairman, I do have plans, and in hope-
ful anticipation that I am confirmed, I have already begun the ef-
fort to bring myself up to speed in those areas. For example, I have
already attended a seminar put on by the U.S. Sentencing Commis-
sion with respect to the guidelines. I have obtained from the Fed-
eral Judicial Center educational materials that are very, very use-
ful, including video training materials. As the other nominees who
are here today, I am enrolled next week to go to video orientation
for district court judges.
I have a very good rapport with the members of the Middle Dis-
trict of Pennsylvania now, and I intend to enlist their advice and
help in coming up to speed in this area. I should mention that, in
terms of civil rights, I have had experience in that area as a litiga-
tor and have represented an indigent State court prisoner in bring-
ing an appeal to the U.S. Court of Appeals for the Third Circuit
that raised constitutional rights.
Senator Metzenbaum. In 1992, you were appointed to the Law-
yers Advisory Committee for the U.S. District Court for the Middle
District of Pennsylvania. Please explain what issues that commit-
tee addressed, and whether your experience has provided you with
any insights concerning the challenges that a U.S. district judge
may face.
Mr. Vanaskie. The advisory committee for the middle district
has been in place for a great number of years. It predates, of
course, the Civil Justice Reform Act, but its intent was to serve as
a liaison between the practicing members of the bar and the court
itself, and we hold quarterly meetings with the chief judge of our
district, and the purpose of those meetings is to bring to the court's
attention concerns that practitioners are having in terms of case
management or case progress.
We have also addressed matters such as greater utilization of
magistrate judges in order to move the matters along, and we have
implemented, in cooperation with the chief judge and the members
of the middle district court a law school practice role. And I think
that is a very effective means of readying those who are students
for the practice of law.
Senator Metzenbaum. What was your major area of accomplish-
ment in the athletic world? I see you have got a number of awards
in sports.
Mr. Vanaskie. Maybe the thing I am most proud of now — the
older you get, of course, the more important they seem to become,
but I was inducted into the Schmoken, PA, Chapter of the Penn-
sylvania Hall of Fame, and that was a very gratifying recognition,
I suppose. But maybe in terms of how I feel about the other rec-
ognitions, it would have been recognized as the first academic ail-
American in football.
Senator Metzenbaum. In football?
Mr. Vanaskie. In football, sir.
33
Senator Metzenbaum. Very good.
Senator Cohen.
Senator Cohen. I would just challenge one statement you made.
I would say the older one gets, the award that one achieved seems
to loom larger in the memory. As someone who was engaged in a
lot of college activities, they seem much more magnanimous now in
retrospect than they were at the time.
Mr. Vanaskie. I agree with you.
Senator Cohen. I read your article in 1977 about the Supreme
Court decision in the National League of Cities v. Usery.
Mr. Vanaskie. Yes.
Senator Cohen. I was curious about the language that you used,
because you discussed the precedents that the court both used and
discarded and you wrote that in National League of Cities the
Court has "fabricated a new method for reviewing commerce power,
regulations and State functions, namely the State sovereignty doc-
trine."
I was curious about your use of the words "they have fabricated."
As an attorney, I am sure Senator Specter and Senator Metzen-
baum would say that attorneys or Leagues of Cities or any other
plaintiff does not necessarily fabricate, but does advocate a particu-
lar position. They were successful in 1976 when the case was de-
cided, and then a short time thereafter the court reversed, as I re-
call, and basically came, I assume, to your own position on this.
It raised a question in my mind. Do you think the court was cor-
rect in overruling the 1976 decision, or should the court have ap-
plied stare decisis in that matter?
Mr. Vanaskie. I do not know if I have a position, but the premise
of the paper, the premise of the article was that rationales were de-
veloped in order to justify a certain outcome.
Senator Cohen. I think you used the word "fabricated."
Mr. Vanaskie. I used the word "fabricate," yes, absolutely. And
in terms of do I agree that there are instances where there should
be — your specific question, Senator Cohen, is did I agree with the
result in the Garcia case, Garcia v. San Antonio School District, I
believe.
In terms of an outcome, it seemed to me that when we looked
at decisions that involved exercise of the commerce clause power
insofar as it affected State governmental matters, matters of State
interests, the court in Maryland v. Wirtz had spoken pretty clearly
on that point, but again a divided court, and it seemed to me that
we were obtaining results based upon a judiciary's view or the
court's view of the proper structure of federalism, what it ought to
be.
I thought the instance of using the State sovereignty doctrine in
the National League of Cities case was an instance of judicial activ-
ism, where the legislative policy was disregarded. It seems to me,
and I believe it would be correct, that the premise of the article is
that questions of the proper structure and allocation of power in
the Federal system is left to the political bodies and not to the judi-
ciary.
Senator Cohen. So if you have a case in which you believe the
prior court decision was the result of judicial activism, does that
mean that you would support a reversal of that decision. In other
34
words suppose when you have a different court come in by virtue
of the replacement of members, and they look back and say we had
a very activist court during the 1970's and the 1980's. Would it be
proper for the court to say it is taking a different tact now, that
a prior decison was the result of judicial activism and that it is
being overruled?
The question I really have is, do you think that a court should
apply stare decisis? Is there a timeframe that you look at?
Mr. Vanaskie. There is no timeframe, and I would mention that
the Maryland v. Wirtz case was decided in 1968, so 8 years later
you had that overruled, as well.
But my responsibility as a district court judge, if confirmed, is to
follow the law as it is established, and I have no function in terms
of deciding whether or not that was an exercise of judicial activism
or not. It is simply to apply the precedent as it has been estab-
lished by the Supreme Court, of, if there is none, by the third cir-
cuit.
Senator COHEN. In other words, if you were presented with a
similar case, even though you felt the League of Cities, if it were
in effect at the time, was the product of either fabrication or nov-
elty advocacy, would you uphold until it was overruled?
Mr. Vanaskie. Yes, Senator.
Senator COHEN. I think that is all I have, Mr. Chairman.
Senator Metzenbaum. Thank you very much, Senator Cohen.
Senator Specter.
Senator Specter. Thank you very much, Mr. Chairman. I have
no questions. You were in the room and heard what I had to say
to Ms. Rendell about Senator Thurmond's admonition. Good luck.
Mr. Vanaskie. Thank you, and I agree wholeheartedly with what
you said. Senator Specter.
Senator Specter. Thank you.
Senator Metzenbaum. Thank you very much, Mr. Vanaskie, and
good luck to you.
Mr. Vanaskie. Thank you.
Senator Metzenbaum. Our next witness is Helen Georgena
Berrigan, New Orleans, LA.
Do you swear to tell the truth, the whole truth, and nothing but
the truth, so help you God?
Ms. Berrigan. I do.
TESTIMONY OF HELEN GEORGENA BERRIGAN, OF LOUISIANA,
TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT
OF LOUISIANA
Ms. Berrigan. If I could, I would like just to say as a preface
that this has been a very extraordinary week for me. This past
Monday, my entire family, my brothers and sisters and nieces and
nephews got together for the first time in over a decade to cele-
brate my father's 100th birthday.
Senator Metzenbaum. Fantastic.
Ms. Berrigan. And it was that afternoon of his birthday that the
call came from the Justice Department to head on down here. My
dad unfortunately, because of his age, could not make the trip. He
very much wanted to be here. He is the reason we have the film
crew, so I just wanted to say hi.
35
I do have a number of very important people here with me today.
First, my husband and best friend Joe.
Senator Metzenbaum. We are glad to have you with us.
Ms. Berrigan. And my sister Kathy from Louisiana, who is my
second best friend. Until I met Joe, she was my first best friend.
My law partner Jim Brady, who has helped guide me through
this whole unusual process. Also, my mom died many years ago,
and there is a woman here who kind of was a surrogate mom for
me during some important times of my life, and that is Maureen
Finnigan, and I would like her to stand.
And then a very good buddie of mine from my hometown who
went to the University of Wisconsin with me and was my room-
mate here in Washington when I had the distinction of working for
Senator Hughs and Senator Biden, Stu Jackson Pardo.
Senator Cohen. You worked for Senator Biden, too?
Ms. Berrigan. Yes, sir.
Senator Cohen. We may have to take a reconsideration of your
nomination. [Laughter.]
Ms. Berrigan. My dad did want me to tell Senator Cohen that,
for all his 100 years, he has been a Republican. [Laughter.]
Senator Metzenbaum. You obviously did not come from Louisi-
ana originally?
Ms. Berrigan. No, sir, I am originally from Larchmont, NY.
Senator Specter. You all sound like it.
Senator Metzenbaum. Do you have an opening statement?
Ms. Berrigan. One other comment I forgot to make is that my
mom and all her family were from Tip City, OH, and we spent
many a summer
Senator Metzenbaum. Whereabouts in Ohio?
Ms. Berrigan. Tip City, outside Dayton.
Senator Metzenbaum. Well, we are very happy to have you here.
In 1987, you wrote an article suggesting as an alternative to in-
carceration that an inmate be sentenced to a boot camp. After suc-
cessfully completing boot camp, the offender would be eligible for
parole release or he would be intensely supervised and subject to
a curfew house arrest.
As you know, the Senate recently passed a crime bill which in-
cludes a provision of established Federal boot camps for nonviolent
offenders. If that bill becomes law and you are confirmed, how
would you determine which nonviolent offenders to send to boot
camp?
Ms. Berrigan. We have a similar type statute in Louisiana, and
the statute sets forth the offender classes that would be eligible. I
think you have to be sentenced to a sentence of 7 years or less, it
is certain particular offenses, the judge has to make the rec-
ommendation, there has to be no history of violence. There is a
number of qualifications that have been put into the statute.
I would hope that if such a similar procedure was enacted by
Congress, it would also set forth the guidance in the statute as to
what offenders would be eligible for consideration.
Senator Metzenbaum. As a district court judge, would you con-
sider yourself bound by Supreme Court and circuit court decisions,
even though you might personally feel quite strongly that some of
36
those decisions were incorrect or failed to interpret the Constitu-
tion as you thought it should be interpreted?
Ms. Berrigan. I think one of the most important aspects of the
law is stability and respect for stare decisis and prior jurispru-
dence, and I would consider myself totally bound by both fifth cir-
cuit and U.S. case law.
Senator Metzenbaum. As a practicing lawyer — and you are a
practicing lawyer I understand now — what type of work did you do?
Ms. Berrigan. Primarily criminal defense and postconviction
pardon and parole, but criminal related law.
Senator Metzenbaum. I do not have your record in front of me,
but have you been in any extracurricular activities? What kinds of
any have you been involved in?
Ms. Berrigan. Well, I am not sure what you mean by extra-
curricular. I have been active in the Louisiana American Civil Lib-
erties Union for a number of years. I have been active in political
organizations, for example, an organization to encourage women to
run and serve in public office. I have done fund-raising activities
on behalf of a hospice for AIDS victims and patients in New Orle-
ans. I have done things in the community that I hope improve the
community.
Senator Metzenbaum. It sounds pretty good to me.
Ms. Berrigan. Thank you.
Senator Metzenbaum. The Judicial Conference, which is the pol-
icy-making arm of the Federal courts, is in the midst of a 3-year
experiment allowing the use of cameras in Federal courts during
civil trials. A restriction on that experiment is that the media,
when it is interested in televising a particular trial, must notify the
presiding judge in advance and the judge may refuse the request
at his or her discretion.
What factors would you use in making your decision as to wheth-
er to agree to a request to televise a certain trial?
Ms. Berrigan. I think the primary consideration is giving the
litigants a fair trial. I guess at the one side I would be concerned
as to how the televised aspect of it might affect the witnesses,
whether the witnesses would be intimidated or somehow affected
in their testimony by being on television, how the jury might be af-
fected, if it was a highly emotional case, would the jury be con-
cerned about being on television and what folks outside might
think. Those are the things I would probably take into consider-
ation.
Senator Metzenbaum. Senator Cohen.
Senator COHEN. Thank you very much.
Ms. Berrigan, you wrote an article called "The Purpose of Pun-
ishment"
Ms. Berrigan. Yes.
Senator COHEN [continuing]. In which you list the four tradi-
tional philosophies of correction being rehabilitation, deterrence, in-
capacitation and retribution. I think you indicated that retribution
is at best shortsighted, and at worse dangerously destructive to in-
dividuals who are otherwise salvageable.
The question I have is what role, if any, does retribution have
in the criminal justice system, as far as you are concerned?
37
Ms. Berrigan. Well, I think there is a natural need for society
to say to someone in a forum or either through our criminal justice
system that you cannot do certain things to your fellow citizens. If
retribution is that, if it is the just deserts concept that you have
done wrong and, therefore, you must pay the consequences of what
you have done, that is salutary and important, because people do
have to be held responsible for what they do.
I think rehabilitation also is an important consideration, and you
did read the complete sentence where I indicated that when people
can be salvageable, and I think rehabilitation, for example, should
always be at least an opportunity. Only a person themselves can
decide they want to rehabilitate themselves. The system cannot do
it to them, but certainly the opportunity should be there.
So I think all four of those ingredients are a part of our correc-
tions system and probably will remain so and appropriately so.
Senator COHEN. One of the problems I think you indicated before
is that we need to maintain respect for the courts and our judicial
system, but that respect is breaking down. Now, it may be that the
loss of respect is endemic. It is affecting all of our institutions. But
more and more I think the focus has been directed toward the
courts, as well, because of the celebrated cases. For example, the
Monica Seles case in Germany, in which she was attacked with a
pair of scissors or a knife, as I recall, and stabbed, and yet the
court released that individual and put him on probation. There was
a natural outcry, saying a tremendous injustice has been done.
You can go through case after case in which there is a horrible
example of a vicious crime being committed against an individual,
and society says something must be done to acquire retribution in
that case. The most recent one I can think of is just this week
there was a case in which a man was sitting in his car and an indi-
vidual came up and had a gun and demanded the man get out of
the car. He locked his doors and ducked down on the seat and was
lying prone on the seat, and the individual who was trying to get
in started firing the gun into the car and succeeded in paralyzing
that individual for life.
The reaction of the victim's family was "I want the perpetrator
of the crime to live exactly as my father has to live the rest of his
life." Now, retribution in this case does serve a very valid purpose
in our system. It is not to say that any court or society is going
to impose an equal level of retribution. We are not going to see that
that individual is paralyzed, but the emotion that is involved collec-
tively in society, particularly for that family, is so strong that the
sentence that individual receives, if in fact he is ever convicted,
seems to me should be very severe.
To often, we tend to take into account the salvageability or the
rehabilitation of the individual and we tend to ignore the severity
of the pain that individual has inflicted. To the extent we continue
to do that, society is going to see the rise of vigilante groups, people
taking the law into their own hands, people equipping themselves
with their own weapons, riding around with guns in their cars to
prevent car jackings. There is a common sense that we have been
too easy in terms of the penalties that have been imposed. People
go in prison and they are back out on the street.
38
You cannot turn on a program on television at nighttime now,
"Courts and the Law," or "Cops Out on the Beat," without hearing
every individual in the law enforcement business rail against the
criminad justice system complains about spending more time filling
out paperwork than the criminal will to serve in prison. And you
see people going to the system and coming out.
As a matter of fact, that is one of the reasons I think, the Presi-
dent endorsed the Senate's crime bill that contained the so-called
three-strikes-and-you-are-out provision, because there is a collec-
tive anger that is building in society saying that we are putting too
much emphasis perhaps on rehabilitation and not enough on pun-
ishment.
Now, in your article I think you pointed out that there is some
moderate correlation that is shown to exist between deterrence and
the certainty of imprisonment as a sentence, even though this is
subject to question. I do not disagree with that. I have heard a
number of speeches given by Rev. Jesse Jackson in which he points
out that for many of the individuals who are now being sent off to
prison, it is not a step down, it is a step up. They are coming out
of poverty and deprivation and lawlessness, and going to a place
where they can in fact receive meals and cable television and pret-
ty warm accommodations which they do not have out on the street.
So I am not sure what the answer is. There maybe a correlation
between the certainty of imprisonment and deterrence. I do not
know. I do not have the answer to that, but we are all struggling
with that right now. It seems to me that the more we read about
it, we have got at least one generation, possibly two, that are com-
ing up in an atmosphere which is almost tantamount to the "Lord
of the Flies." There is no sense of morality.
I saw one interview recently in which inmates, career criminals,
who have been in prison for 15-20 years are shocked by the amo-
rality of the individuals coming into the prison system today. They
would say, that when they robbed a person they would take the
money and leave. Today, criminals take the money and kill you
anyway.
So we have a long-term problem and we have a short-term prob-
lem. The long-term problem obviously has to do with racism in our
society, with giving people who have been deprived an opportunity
to rise and to flourish and receive an education and to nurture
those individuals who do not otherwise have a fair chance.
At the same time, we have a short-term problem, and the short-
term problem has to be to get the violent criminals off the street,
because most people today, particularly in this city — and I am sure
in both Ohio and Louisiana — are frightened. Fear is the biggest
issue on the minds of the American people today, even above that
of health care reform or welfare reform. Fear of being a victim of
a violent criminal act is perhaps foremost in the minds of the
American people.
So I hope as you serve in this capacity, you will take that into
account, understanding that retribution, a collective societal ret-
ribution, is also a very important element in preserving a respect
for the law.
Ms. Berrigan. I have been a crime victim myself, so I know the
feeling.
39
Senator COHEN. Thank you.
Senator Metzenbaum. Thank you very much, Senator Cohen.
Ms. Berrigan, what is the Forum for Equality?
Ms. Berrigan. The Forum for Equality is an organization that
was created about 4 or 5 years ago now in New Orleans, with two
purposes. The first purpose was to promote equal rights for all mi-
norities, regardless of race, religion, gender, age, sexual orienta-
tion, disabilities, basically the whole gamut, almost like an um-
brella, but to be also a political advocate which, for example, the
American Civil Liberties Union is not. The ACLU does not get in-
volved in political campaigns. The Forum for Equality does. It en-
dorses candidates, interviews candidates and so forth.
The second mission of the Forum for Equality was to promote
good government. Louisiana has an unusual history in that regard,
so we felt that it was important to have that as part of our mission,
as well. So it is really a dual mission organization to promote equal
rights for all minorities and good government from all our public
officials.
Senator Metzenbaum. Thank you ver>' much. I must say that I
did not think I would ever sit here and have the president of the
ACLU in New Orleans and a very active member of the Forum for
Equality — I guess you are a member — come up as a nominee for
the Federal district bench. I am pleased to see it, and I congratu-
late you. I more particularly congratulate the Senators who I as-
sume nominated you.
Ms. Berrigan. Thank you very much, Senator.
Senator Metzenbaum. Thank you.
The last nominee is Tucker Melancon, a Greek name, sir?
Mr. Melancon. French.
Senator Metzenbaum. Do you solemnly swear to tell the truth,
the whole truth, and nothing but the truth, so help you God?
Mr. Melancon. I do.
TESTIMONY OF TUCKER MELANCON, OF LOUISIANA, TO BE
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOU-
ISIANA
Senator Metzenbaum. Would you like to introduce members of
your family?
Mr. Melancon. With the chairman's permission, I would like to
remain standing, so I do not forget. As Senator Breaux said in his
introduction, I have got quite a contingent to come up from Louisi-
ana and I have some friends from the Washington area I would
like to introduce.
Senator Metzenbaum. Please, whatever is convenient for you.
Mr. Melancon. My wife Kitty; my daughter Robin and her hus-
band A.J. Roy; my son Ben and his brand-new wife Celeste; my law
partner and step-brother Rodney Rabalais, his wife Wanda, and my
nephew Kevin; and a friend of mine from Marksville, LA; from my
hometown Glenn Groudeau and his wife Jo, and their sons Beau
and Jacques. I also have from Senator Breaux's office a young lady
from my hometown. Celeste Coco, and another young lady from my
hometown who is a student in Washington, Shibohan Dupuy.
Last, I would once again like to recognize a long-time great
friend of mine, Jim Brady.
40
Senator Metzenbaum. Thank you very much. I am pleased that
we have helped improve the airline economy between Louisiana
and here. Between you and Ms. Berrigan, it is a good grouping.
Senator COHEN. You have also complicated our lives. We had just
gotten used to addressing General Shalikashvili. Now you have
given us a new name to master here today.
Senator Metzenbaum. Do you have an opening statement?
Mr. Melancon. No, Mr. Chairman, other than to say that I am
honored to be here.
Senator Metzenbaum. You served on the Committee to Study
the Backlog in Louisiana Court of Appeal for the First and Third
Circuits. Given your experience, if confirmed, what steps will you
take to ensure that your docket progresses at as quick a pace as
fair and reasonable?
Mr. Melancon. Mr. Chairman, I served on that committee by
appointment of the Louisiana Supreme Court and I think the prob-
lems that we found in the first and third circuits in the State
courts of Louisiana are not, based on my present appreciation of
what I will face as a Federal judge, if I am so lucky to be con-
firmed, are not the same.
I agree with what has been said earlier, that I think a Federal
judge needs to be a hands-on judge, if you are going to be in a posi-
tion to control the docket, and by that I mean to be involved at
each stage. I think my appreciation of rule 16 conferences and the
procedures that have been recommended, based on my recent read-
ings in the use of magistrate judges, will help in that regard.
In my particular situation, the Monroe division, which I have
been nominated for, the six other judges of the western district
have done a magnificent job in trying to keep that docket, particu-
larly the criminal docket, as current as possible. This position has
been vacant for approximately 2 years and they have done a real
good job. I think right now there are about 430 cases pending.
Senator Metzenbaum. Mr. Melancon, I notice that you have had
a considerable business interest in a number of different busi-
nesses. What portion of your time has been devoted to the law and
what portion to your business enterprises?
Mr. Melancon. Mr. Chairman, I would say candidly about 110
percent of my time to the law. Except for a period from about 1980
to 1991, when I was involved as an investor in a restaurant, the
investment went bad because of some improper management, and
for a short time I was actually in the restaurant business.
Other than that, the business activities that are mentioned in
the information I have supplied to the committee were basically as
investor in most instances with a step-brother and a brother-in-
law, and I did serve in a technical sense as a member of the board
of directors for a closely held corporation. But I have been a full-
time lawyer for most of the 20-plus years that I practiced law.
Senator Metzenbaum. What kind of community activities have
you engaged in?
Mr. Melancon. I have been involved basically early on when I
got out of law school in civic organizations such as the Jaycees. I
have been very active in the Boy Scouts, not in recent years, but
T was an Eagle Scout and was involved when I got out of law school
41
and during the period in which my son was a Boy Scout. He is also
an Eagle Scout.
Senator Metzenbaum. As you know, the Rules of Civil Procedure
allow judges to impose sanctions against lawyers or parties who file
frivolous lawsuits. Recently there has been much debate over the
courts' increased willingness to punish litigants under rule 11.
Now, I have not practiced for a good many years, but I am rather
sensitive about the pendulum swinging to the place where the
judges start to punish lawyers for bringing cases, rather than let-
ting the cases proceed or else dismissing the case and not punish-
ing the lawyers. Some lawyers have actually argued the rule has
been applied to chill pursuit of new and creative arguments in de-
veloping areas of the law, such as civil rights. One judge recently
stated "today's frivolity may be tomorrow's precedent."
Given your experience as a htigator, what is your view about
when rule 11 sanctions should be imposed?
Mr. Melancon. Mr. Chairman, I share your concern that rule 11
can, if misused, have a chilling effect, and I was struck by some
of the comments Senator Specter made to both of the nominees
from Pennsylvania in the way that a judge treats the members of
the bar and the public that comes before a court.
But I think that rule 11, when used appropriately, there is a
valid reason for it, but I think it can certainly be abused. Again,
as a practicing lawyer, I do not think that will be a problem for
me.
Senator Metzenbaum. Were you plaintiffs' lawyer or defendants'
lawyer mostly?
Mr. Melancon. Well, it is quite interesting to answer the ques-
tion. I practice in a rural area, a town of about 5,000, and I guess
for the first 17 years I was primarily a plaintiffs' lawyer. For sev-
eral reasons, the last 2V2 to 3 years I have primarily been a de-
fense attorney, although my firm, which is comprised of my partner
who I introduced earlier and one associate, continues to have a var-
ied practice.
Senator Metzenbaum. Senator Cohen.
Senator Cohen. Thank you, Mr. Chairman.
Is your partner's name Rabalais?
Mr. Melancon. Rabalais.
Senator Cohen. Rabalais, I want to make sure I get that one
right.
First of all, Senator Metzenbaum I think has a strong conflict of
interest in asking you the question as to whether or not you would
be receptive to complaints being brought by creative plaintiffs. He
is about to leave the Senate and he will probably go back into the
practice of law. Given his creative talents on the Senate floor, he
is probably worried that the courts are going to take into account
that he might be filing frivolous lawsuits, but most of us by virtue
of experience know that he will be in the forefront or at least 10
years ahead of his time. So I think there is a conflict of interest
with that statement.
Senator Metzenbaum. There are a few cases I tend to file in
New Orleans. [Laughter.]
42
Senator COHEN. Most of your practice, as I understand it, has
been on the civil side, if not all of it, at the State level. Have you
practiced to any significant degree before the Federal courts?
Mr. Melancon. In recent years, Senator, I have had the oppor-
tunity as part of the defense work I have been doing to represent
the Louisiana Sheriffs Risk Management Program, and we have
been involved in a number of prisoner cases, some personal injury
cases against the Louisiana Sheriffs Risk Management Program.
I have also had the opportunity to have a number, I guess over
the 20 years probably 15 to 20 admiralty-type cases, and I have
had several trials against various Government entities, the VA hos-
pital comes to mind. The bulk of my practice has been in State
court.
Senator COHEN. I assume, like Ms. Berrigan, you are going to a
trial judges' school?
Mr. Melancon. This week, yes, sir.
Senator Cohen. I would just say for the benefit of those in the
audience I suspect that people are not aware of exactly how de-
manding a trial judge's job is. You have got to make quick decisions
on spur-of-the-moment evidentiary decisions, and someone is al-
ways looking over your shoulder. They may be big cases or small
cases, but eventually you are going to have an appellate court look-
ing over your shoulder and possibly a Supreme Court, and it is a
tremendous burden upon any Federal district court judge. I would
say more so than for the circuit court judges.
They have a tough job, but it is really not nearly as tough as you
will have, because you are on the spot and you must make instan-
taneous decisions in terms of whether something is admitted, ex-
cluded, overruled, et cetera.
So good luck to you in your school. It is going to be very impor-
tant to you, and I am sure that both of you will have to have some
on-the-job experience or training. It is going to be a very difficult
job. That is why we insist that the people who come before us are
as qualified as possible and as highly intelligent and capable as
possible, because it is going to be a very vigorous and demanding
job on your part.
Good luck.
Mr. Melancon. Thank you very much. Senator.
Senator Metzenbaum. Thank you very much, Senator Cohen.
Thank you, I might say, for spending the afternoon here.
Thank you very much, and we wish you well.
Mr. Melancon. Thank you, Mr. Chairman.
Senator Metzenbaum. This hearing stands adjourned.
[Whereupon, at 4:22 p.m., the committee was adjourned.]
[Submissions for the record follow:]
43
SUBMISSIONS FOR THE RECORD
United States Senate
1. Full name (include any former names used).
Judith Ann Wilson Rogers (Judy)
2. Addresses: List current place of residence and office
address (es) :
Home: 111 Third Street, N.E.
Washington, D.C. 20002
Telephone: 202-546-7472
Office: D.C. Court of Appeals
500 Indiana Av., N.W.
Washington, D.C. 20001
Telephone: 202-879-2770
3. Date and place of birth:
July 27, 1939; New York, N.Y.
4. Martial Status (include maiden name of wife, or husband's
name) . List spouse's occupation, employer's name and business
address (es) :
Divorced, August 8, 1978, from Stephen Childs Rogers,
Esquire, 503 A Street, S.E. , Washington, D.C. 20003 (202-546-
5926) .
5. Education; List each college and law school you have
attended, including dates of attendance, degrees received, and
dates degrees were granted.
Radcliffe College: 1958-1961, A.B. degree, cum laude (1961).
Harvard Law School: 1961-1964, LL.B (1964).
University of Virginia Law School: 1986-1988, LL.M. degree
(1988) .
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
Summer 1961: survey analyst for Conover-Mast Publishing Co.,
205 East 42nd Street, New York, N.Y.
Summer 1962: Assistant to W. Barton Leach, Professor of Law,
1
44
Harvard Law School, Cambridge, MA.
Summer 1963: Aide to counsel for the President's Commission
on Juvenile Delinquency and Youth Crime, U.S. Department of
Justice, Washington, D.C.
1964-65: Law Clerk, Juvenile Court of the District of
Columbia.
1965-1968: Assistant United States Attorney for the District
of Columbia, U.S. Department of Justice, Washington, D.C.
1968-1969: Staff attorney, San Francisco Neighborhood Legal
Assistance Foundation, 1095 Market Street, San Francisco, CA.
s
1969-1971: Trial attorney. Criminal Division, U.S.
Department of Justice, Washington, D.C.
1971-72: General Counsel, Congressional Commission on the
Organization of the District Government, Washington, D.C.
1972-74: Legislative Program Coordinator, Office of the
Assistant to the Mayor-Commissioner, and subsequently in the
Office of the Mayor, District of Columbia government.
1974-79: Special Assistant for Legislation to the Mayor,
District of Columbia government.
1979 (January to April 15) : Assistant City Administrator for
Intergovernmental Relations, District of Columbia government.
1979-1983: Corporation Counsel for the District of Columbia.
1983 to present, associate judge (1983-88) and Chief Judge
(November 1, 1988 to present), District of Columbia Court of
Appeals.
7. Military Sei-vice: Have you had any military service? If so,
give particulars, including dates, branch of service, rank or
rate, serial number and type of discharge received.
No,
8. Honors and Awards. List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee,
Phi Beta Kappa, Radcliffe College, June 3, 1986.
Certificate of Appreciation, in recognition of outstanding
service as Chief Judge of the District of Columbia Court of
Appeals, .Bar Association of the District of Columbia, November
■ -y.
2
45
15, 1991.
Woman Lawyer of the Year Award, Wonen's Bar Association of
the District of Columbia, May 30, 1990.
Chairman's Special Award, The Judicial Council of the
National Bar Association, August 1, 1990.
Charlotte Ray Award, Greater Washington Area Chapter, Women
Lawyers' Division, National Bar Association, 1989.
Distinguished Public Service Award, District of Columbia
government, September 13 1983.
Outstanding Performance Citation by Mayor Walter E.
Washington, for period April 1, 1977 to March 31, 1979.
Resolution of the Council of the District of Columbia in
Recognition of skillful and effective representation of the
District government, "Judith W. Rogers, Esquire, Resolution of
1983," No. 5-285, July 12, 1983.
Proclamation by Mayor, proclaiming September 13, 1983 as
"Judith W. Rogers Day" in the District of Columbia in recognition
of dedicated and distinguished service.
Citizens' Citation for outstanding service, Self-
Determination for D.C. Coalition, following enactment by Congress
of the D.C. Self -Government and Governmental Reorganization Act
of 1973.
Honorary Doctor of Laws, University of the District of
Columbia School of Law, May 1992.
9- Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any offices
which you have held in such groups.
Member:
American Bar Association, 1984 to present;
Life Member of the Fellows of the American
Bar Foundation, 1992
D.C. Bar, 1974 to present.
Bar Association of the District of Columbia, 1966-67; 1983
to present,
Washington Bar Association, 1983 to present.
National Bar Association, 1988 to present.
National Association of Women Judges, 1983 to present.
Council for Court Excellence, ex officio, 1988 to present.
Conference of Chief Justices, 1988 to present:
Executive Committee, 1993 to present.
46
10. other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies. Please
list all other organizations to which you belong.
Conference of Chief Justices, 1988 to present.
Wider Opportunities for Women, Board of Directors, 1972-74
Friends of the D.C. Superior Court, Board of Directors,
1972-74
Radcliffe College, trustee, 1982 to 1988
Harvard University, Visiting Conmittee to the law school,
1984 to 1990
St. Mark's Episcopal Church, 1981 to present.
The Cosmos Club, 1990 to present.
The Lawyers Club, 1990 to present.
11. Court Admission: List all courts in which you have been
admitted to practice, with dates of admission and lapses if any
such memberships lapsed. Please explain the reason for any lapse
of membership. Give the same information for administrative
bodies which require special admission to practice.
United States Supreme Court, May 14, 1979.
United States Court of Appeals for the District of Columbia
Circuit, October 11, 1965.
United States District Court for the District of Columbia,
June 21, 1965.
District of Columbia Court of Appeals, April 1, 1972.
Superior Court of the District of Columiba, April 1, 1972.
D.C. Court of General Sessions, October 7, 1969. (Admitted
to predecessor court, June 21, 1965)
12. Published Writings: List the titles, publishers, and dates
of books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press reports
about the speech and they are readily available to you, please
supply them.
All of my published writings appear in the form of (1)
testimony before Congress or the Council of the District of
Columbia on proposed legislation, including budget requests, and
(2) published opinions as a judge on the D.C. Court of Appeals.
A summary of the nature of my testimony before the D.C. Council
appears at Tab 1.
My speeches have addressed the needs of the Judicial Branch
of the District government, but generally have not addressed
legal policy. I attach a copy of my speech to the Fellows of the
47
American Bar Foundation, District of Columbia, May 12, 1992. See
Tab 2.
13. Health; What is the present state of your health. List the
date of your last physical exeunination.
My health is excellent. My last physical exiunination was on
February 22, 1993.
14. Judicial Office; State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each such
court .
1983; Appointed by President Ronald Reagan, and confirmed by
the United States Senate, to a fifteen-year term on the D.C.
Court of Appeals.
1988; Designated by the D.C. Nomination Commission to a
four-year term as Chief Judge, D.C. Court of Appeals, beginning
November 1, 1988.
1992: Redesignated by the D.C. Nomination Commission to a
second four-year term as Chief Judge, D.C. Court of Appeals,
beginning November 1, 1992.
The D.C. Court of Appeals is the highest court in the
District of Columbia. Created by Congress in 1970, the Court
functions like the state appellate courts. It performs both
error-review and jurisprudential functions. Appeals from
decisions of the D.C. Court of Appeals are to the United States
Supreme Court on a petition for certiorari review. The Court
consists of nine judges, who sit in three-judge panels;
occasionally, the Court sits en banc.
The D.C. Court of Appeals has jurisdiction to hear all
appeals in civil, criminal and administrative agency cases. It
also has original jurisdiction in some matters, including
attorney discipline. Because the District of Columbia has state,
county and municipal responsibilities, the D.C. Court of Appeals
hears the same types of appeals as the appellate courts in the
states, with the exception of state constitutional issues. The
federal rules of criminal and civil procedure apply in the trial
court, except as modified upon approval of the Court of Appeals.
The United States Attorney for the District of Columbia is both
the local and federal prosecutor in the District of Columbia, and
hence, the Justice Department appears in nearly all criminal
appeals.
15. Citations: If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have written;
48
(2) a short suminaxy of and citations for all appellate opinions
where your decisions were reversed or where your judgment was
affirmed with significant criticism of your sxibstantive or
procedural rulings; and (3) citations for significant opinions on
federal or state constitutional issues, together with the
citation to appellate court rulings on such opinions. If any of
these opinions lists were not officially reported, please provide
copies of the opinions.
(1) Ten significant opinions that I have written on behalf
of the D.C. Court of Appeals:
1. Hessey V. Bd of Elections & Ethics , 601 A. 2d 3 (D.C. 1991) (en
banc) .
2. Scott V. United States, 559 A. 2d 745 (D.C. 1989) (en banc).
3. Battle V. U.S. , 630 A. 2d 211 (D.C. 1993).
4. Johnson V. U.S. , 616 A. 2d 1216 (D.C. 1992).
5. Caldwell V. U.S. , No. 595 A. 2d 961 (D.C. 1991)
6. Durant V. U.S. , 551 A. 2d 1318 (D.C. 1988).
7. Newspapers, Inc. v. Metropolitan Police Dept. , 546 A. 2d 990 (D.C.
1988) .
8. Stutsman V. Kaiser Found. Health Plan , 54 6 A. 2d 3 67 (D.C.
1988) .
9. Embassy of Benin v. D.C. Bd. of Zoning Adjustment , 534 A. 2d 310
(D.C. 1987).
10. Sherrod V. U.S. , 478 A. 2d 644 (D.C. 1984).
(2) Summary and citation where my decision was reversed or
affirmed with significant criticism:
This has occurred when the en banc court has reversed a
decision of a three-judge division:
1. Harris V. U.S. , 602 A. 2d 154 (D.C. 1992) (en banc) (whether
"plain error" requiring reversal occurred where appellant claimed
prosecutorial misconduct, trial judge error, and unprofessional
conduct by defense counsel)
2. Speight V. U.S. , 569 A. 2d 124 (D.C. 1989) (en banc)
(constitutionality of statute allowing enhancement of sentence,
in absence of finding of culpability for first offense, when
49
defendant commits second offense while on pretrial release for
first offense and the sentence exceeds the combined maximum
penalty for conviction for second offense and the penalty for
violating a condition of pretrial release) .
3. Cousart V. U.S. , 618 A. 2d 96 (D.C. 1992) (en banc) (in
absence of articulable suspicion of automobile passenger, whether
passenger was seized in violation of the Fourth Amendment when
told by police officer holding shotgun in the "ready" position to
reach for the ceiling of car) .
(3) Significant opinions on federal or state constitutional
issues.
1. Darabv.US., 623 A. 2d 127 (D.C. 1993)
2. In re AS., 614 A. 2d 534 (D.C. 1992)
3. Ceddwell V. U.S. , 595 A. 2d 961 (D.C. 1991)
4. Guadaloupe V. United States , 585 A. 2d 1348 (D.C. 1991)
5. Galbertb V. U.S. , 590 A. 2d 990 (D.C. 1991); after remand,
Taylor V. U.S. , 595 A. 2d 1007 (D.C. 1991)
6. Wbeelock V. U.S. , 552 A. 2d 503 (D.C. 1988)
16. Public Office; State (chronologically) any public office you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for elective
public office.
Assistant United States Attorney for the District of
Columbia, appointed by Attorney General Nicholas deB. Katzenbach,
November 29, 1965. Served until June 1968.
Corporation Counsel of the District of Columbia, appointed
by Mayor Marion S. Barry, April 16, 1979, and confirmed by the
Council of the District of Columbia, June 19, 1979. Served until
September 15, 1983.
I was an unsuccessful candidate for election to the Board of
Directors of the D.C. Bar in the late 1970s.
17. Legal Career;
a. Describe chronologically your law practice and experience
after graduation from law school, including:
50
1. whether you served as a clerk to a judge, and if
so, the name of the judge, the court, and the dates of
the period you were a clerk;
1964-65: Law Clerk, Juvenile Court of the District of
Columbia: Chief Judge Morris Miller (now deceased). Some
assignments from the other judges: Judge Marjorie Lawson, Judge
Orman Ketchum, Judge Aubrey Robinson, and Judge John Fauntleroy.
2. whether you practiced alone, and if so the
addresses and dates;
I have never practiced alone.
3. the dates, names, and addresses of law firms or
offices, companies or governmental agencies with which
you have been connected, and the nature of your
connection with each;
1965-1968: Assistant United States Attorney for the District
of Columbia, U.S. Department of Justice, Washington, D.C.
Assigned for one year to the local court to prosecute misdemeanor
jury and non-jury trials, conduct preliminary hearings, motions,
arraignments, and presentments in felony cases. Supervisor:
Honorable Tim C. Murphy, former trial court judge and now
Associate Attorney General, U.S. Department of Justice, 10th
Street and Constitution Av., N.W. , Washington, D.C. (202-514-
4945) .
Thereafter, assigned to the United States District Court for
the District of Columbia to handle special proceedings (habeas
corpus, collateral attacks on criminal convictions, extradition,
and civil commitments) . Supervisor: Oscar Altshuler (now
deceased) . Also wrote three briefs in criminal cases before the
U.S. Court of Appeals for the District of Columbia Circuit and
prepared comments for the United States Attorney on federal
legislation.
In 1967, assigned for three months to Office of Assistant
Attorney General Fred Vinson to work for the Office of Criminal
Justice on reorganizing the District of Columbia court system.
Prepared a report for the United States Judicial Conference
Committee on the Administration of Justice, chaired by Gerhart
Gesell (later judge on U.S. District Court, D.C, now deceased)
on a family court branch in a restructured local court
(addressing rules and procedure, role of counsel, comparison with
other jurisdictions). Resigned, June 1968, because my husband
had accepted a clerkship in San Francisco, California.
1968-1969: Staff attorney, San Francisco Neighborhood Legal
Assistance Foundation, 1095 Market Street, San Francisco,
California. Did legal research on various class action suits in
8
51
federal court. Represented clients in state administrative
proceedings. Taught a clinical course on poverty law with two
other attorneys at Boalt Hall, University of California at
Berkeley, California. Supervisors: Jerry Carlin and Sidney
Wolinski, Esq.
1969-1971: Trial attorney. Criminal Division, U.S.
Department of Justice, Washington, D.C. Assigned to the Office
of the Deputy Attorney General to develop legislation to
reorganize the District of Columbia courts. Part of a four-
lawyer team that prepared draft legislation, department and
legislative reports, and testimony, and worked with congressional
committees as the bill was considered by the House and Senate.
The legislation creating a state-type court system for the
District of Columbia was enacted as the D.C. Court Reform and
Criminal Procedure Act of 1970, Pub. L. 91-358 (July 29, 1970),
84 Stat. 473. Supervisor: Donald E. Santarelli, Esq., 1155
Connecticut Av. , N.W. , Washington, D.C. 20036 (202-466-6800).
In August 1970, assigned to the Legislation and Special
Projects Division to prepare legal memoranda for guidance of
United States Attorneys' offices, reports on congressional
legislation, and analysis of proposed changes in the Federal
Rules of Criminal Procedure. Supervisor: Harold D. Koffsky
(deceased) .
1971-72: General Counsel, Congressional Commission on the
Organization of the District Government, Washington, D.C.
Responsibilities included review of recommendations to change the
organization and responsibilities of the District government.
Worked with management staff on proposed legislation to establish
a new personnel system for District government employees.
Supervised five consultants who were examining youth services in
response to the recommendations in the 1966 report of the
President's Commission on Crime in the District of Columbia.
Supervisor: John E. Hogan, Executive Assistant and Director, 213
11th St., S.E., Washington, D.C. (202-544-2532).
1972-74: Legislative Program Coordinator, Office of the
Assistant to the Mayor-Commissioner, and subsequently the Office
of the Mayor, District of Columbia government. Responsible for
the development of the Mayor's annual legislative program to
Congress. During this time I did substantial work with District
and federal officials, congressional committees and staff, on
legislation to provide home rule in the District of Columbia.
The legislation was enacted as the D.C. Self -Government and
Governmental Reorganization Act of 1973, Pub.L. 93-198 (December
24, 1973), 87 Stat. 774. Supervisor: Hon. Walter E. Washington,
408 T Street, N.W. , Washington, D.C. 20001 (202-DU 7-4613).
1974-79: Special Assistant to Mayor Walter E. Washington for
Legislation. Responsible for preparation of the Mayor's annual
52
legislative programs to Congress and the new Council of the
District of Columbia. In conjunction with the heads of the
departments and agencies, developed legislative recommendations
for the Mayor, drafted and analyzed legislative proposals, and
prepared and presented testimony. In 1977, served as the Mayor's
liaison to the President's Task Force on the District of
Columbia, chaired by Vice President Walter Mondale; responsible
for preparing position papers.
1979: January to April 15: Assistant City Administrator for
Intergovernmental Relations, District of Columbia government.
Responsible for annual legislative programs to Congress and the
Council of the District of Columbia, and for the development of
relationships with regional and national organizations.
1979-1983: Corporation Counsel for the District of Columbia.
The Corporation Counsel serves in a capacity similar to that of a
state attorney general. Actively supervised an office of 200
attorneys, who appeared in the federal and District of Columbia
courts; prepared official legal opinions; commented on District
and congressional legislation; advised departments and
administrative agencies on a variety of legal issues; and
obtained significant funding increases for the District's legal
office. See Annual Reports of the Office of the Corporation Counsel, at Tab
3.
1983 to present, associate judge (1983-88) and Chief Judge
(1988 to present), D.C. Court of Appeals, 500 Indiana Av., N.W.,
Washington, D.C. 20001.
b. 1. What has been the general character of your law
practice, dividing it into period with dates if its
character has changed over the years?
1965-1969: Trial Litigator. As an Assistant United States
Attorney for three years, I prosecuted criminal cases in the
District's trial court on almost a daily basis and handled civil
proceedings in the United States District Court on almost a
weekly basis. As a trial attorney in a legal services program
for under a year, I represented individual clients in state
administrative hearings and civil proceedings and also worked
with several lawyers in representing a community organization in
a class action suit in the federal district court.
1969-1979: Legislation. During these years I worked
principally on legislation of all types, in Congress and the
Council of the District of Columbia. At the Justice Department I
worked on the legislation to create the District's current state-
type court system. In the District government, I worked on the
congressional legislation to create the current form of local
government in the District of Columbia. My experience spanned
10
53
the development of legislation through intra-agency and inter-
agency review with local and federal depairtments and agencies,
drafting and review and preparation of testimony and legislative
reports, and work with congressional and Council committees.
1979-1983: Corporation Counsel for the District government.
Like a state attorney general, I was actively involved in the
development of legal strategy and legal positions, formal legal
opinions, regulatory review and advice, review of appellate
briefs as well as staff management, training, fiscal and budget
issues. Congressional contacts continued as a result of
legislative work and congressional review of budget requests.
1983 to present: Appellate Judge. After serving for five
years as an Associate Judge on the District's highest court, I
was selected, by a seven-member Nomination Committee, to be the
Chief Judge. After serving a four-year term as Chief Judge, the
Nomination Commission appointed me to serve a second four-year
term as Chief Judge. While serving as Chief Judge, I have
continued to carry the full workload of an associate judge in
addition to performing my responsibilities for administration of
the appellate court and as chair of the Joint Committee on
Judicial Administration, the policy making body of the District
of Columbia Court system.
During my service as Chief Judge, the D.C. Court of Appeals
has adopted and implemented a case management program, added
calendars, made greater use of senior judges, streamlined
procedures, and increased productivity. In response to four
independent studies, and upon exhausting alternative solutions, I
worked closely with the Bar and other groups on congressional
legislation to establish an intermediate appellate court. I
served on the Conference of Chief Justices and was elected to its
Executive Committee in August 1993.
While chairing the Joint Committee on Judicial
Administration, the District of Columbia courts have, among other
things, adopted new personnel standards, developed alternative
compensation packages, and obtained increased funding for the
Judicial Branch of the District government. The latter occurred
with the assistance of the Bar, which I sought out in speeches
and meetings, and resulted in testimony and letters as well as
the preparation of a white paper by the D.C. Bar on the need for
adequate funding of the courts. Also, of significance, under my
leadership the Joint Committee established task forces to examine
gender and racial and ethnic bias in the courts and thereafter
implemented recommendations to address bias in the courts. See
Annual Report of the District of Columbia Courts , at Tab 4 .
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
' 11
54
My professional career has been devoted to pxiblic service.
With very brief exceptions I have worked for either the federal
or the District governments. Hence, ny clients have been the
government, and its departments, agencies, boards and
commissions. As a legal services attorney, I represented
individual clients, including a community organization seeking
injunctive relief in federal court and individuals seeking state
administrative remedies.
c. 1. Did you appear in court frequently, occasionally,
or not at all? If the frequency of your appearances in
court varied, describe each variance, giving dates.
1965-68: in court regularly
1979-83: very rarely
2. What percentage of these appearances was in:
(a) federal courts:
100 percent 1967-68
50 percent 1979-83
(b) state courts of record:
100 percent 1965-66
50 percent 1979-83
(c) other courts:
None.
3. What percentage of your litigation was:
(a) civil:
40 percent 1966-68
100 percent 1979-83
(b) criminal:
60 percent 1966-68
4. State the number of cases in courts of record you
tried to verdict or judgment (rather than settled) ,
indicating whether you were sole counsel, chief
counsel, or associate covmsel.
As a prosecutor representing the United States, I
conducted misdemeanor prosecutions in 1965-66 on almost a daily
basis. I conducted forty-one jury trials in misdemeanor
prosecutions in addition to numerous trials and motions argued
before the court. From 1967-68, I handled numerous civil matters
12
55
in the federal district, including civil commitment cases where
there were jury trials nearly every week. In addition, I
prepared pleadings and argued motions in extradition cases,
collateral attacks on criminal convictions, and responded to
petitions for writs of habeas corpus.
5. What percentage of these trials was:
(a) jury:
(b) non-jury:
Working in a high volume prosecutor's office, I did not
keep records of the percentages. The nature of the trials is
described in response to question 4 .
8. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations, if the
cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state as
to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel for
each of the other parties.
Significant litigation in which I was involved as
Corporation Counsel included litigation (1) testing the scope of
delegated powers of the new home rule government; (2) land use
within historic districts; (3) the municipal corporation's
liability for common law torts, medical malpractice, and
constitutional violations; (4) contracts, personnel, and labor
relations; (5) presentation and review of administrative
proceedings; (6) prosecutions for minor misdemeanors, juvenile
delinquency, child abuse and neglect as well as regulatory
violations; and (7) enforcement actions to collect child support
as well as taxes and other funds owed to the District government.
See Annual Reports of the Office of the Corporation Counsel, at Tab 3 .
Significant matters include:
Taxing power: As Corporation Counsel, I presented the
District government's argument before the en banc court in Bishop
V. District of Columbia , 411 A. 2d 997 (D.C. 1980) (en banc), cert,
denied, 446 U.S. 966 (1980). The case involved the taxing
authority of the new home rule government. The Council of the
District of Columbia had enacted legislation to repeal an
exemption for lawyers and other professionals from the D.C.
13
56
franchise tax on unincorporated business. A three-judge division
of the Court held that the legislation exceeded the powers of the
D.C. Council under the D.C. Self -Government and Governmental
Reorganization Act of 1970. The en banc Court agreed to rehear
the case. I presented additional arguments based on the
provisions and legislative history of the D.C. Income and
Franchise Tax Act of 1947, which distinguished between the
proscribed commuter tax on personal income ("income taxes") and
an unincorporated business franchise tax. The en banc Court
nevertheless concluded that the Council had exceeded its
authority.
Attorneys of record: John M. Bixler, Esq., 655 15th Street,
N.W., Washington, D.C. 20005 (202-626-5800), with Ronald D.
Aucutt, Esq., of the same address and telephone number; Phillip
L. Kellogg, Esq., 1275 K St., N.W., Washington D.C, 20005 (202-
898-0722), with James L. Lyons, Esq., of the same address and
telephone number.
Other examples of significant litigation in which I had a
direct supervisory role:
Personnel authority : Barry et al. v. Public Employee Relations Board, et
ai, No. C.A. 15364-80 (D.C. Superior Court, June 30, 1981),
appeal American Federation of Govt Employees v. Barry, et ai , 459 A. 2d
1045 (D.C. 1983). This case involved the scope of the District
government's authority to establish a personnel system that was
independent of the personnel system for federal government
employees. Section 422(3) of the D.C. Self -Government and
Governmental Reorganization Act required the District government
to establish its own personnel system, but also required that the
new system include benefits "at least equal to" those previously
provided by Congress for District government employees. I
recommended that the District government file suit after the
Public Employee Relations Board issued an opinion requiring
collective bargaining to set certain cost-of-living increases,
thereby purporting to limit the Mayor's authority under the newly
enacted D.C. personnel law. The District government's motion for
summary judgment was granted by the trial court. The work in
this case provided the basis for the District government's
position in two other cases where District government employees
raised the "at least equal to" claim. See Concerned Court Employees
et ai V. Polansky, et ai , No. 81-1035 (D.C. Super. Ct. Jan. 29, 1982);
on appeal: 478 A. 2d 1096 (D.C. 1984); Thomas et ai v. Barry, et al ,
No. 92-1920 (D.D.C. 1982), on appeal: 234 U.S. App. D.C. 370, 729
F.2d 1469 (1984) .
Attorneys for the Board: Thomas H. Queen, Esq., 530 8th
Street, S.E., Washington, D.C. 20003 (202-544-4200).
Attorneys for the Union Coalition, which intervened in
14
i
57
support of the Board: A.L. Zwerdling, Esq. (deceased) and Wendy
L. Kahn, Esq., then at 1730 K Street, N.W. , Suite 713,
Washington, D.C. 2006 (unlisted in the 1993 Legal Register) .
Scope of the initiative power i Convention Center Referendum Committee,
et al. V. D.C. Bd. of Elections & Ethics , 438 A. 2d 132 (D.C. 1981) (en
banc) . This case presented issues relating to the respective
authority of the Mayor, the Council of the District of Columbia,
and the Congress where the electorate, acting through a citizen
initiative, sought to prevent construction of a convention
center. Congress had appropriated the funds requested by the
Mayor and Council for construction of the convention center. The
litigation arose when the Board of Elections rejected a proposed
initiative to stop construction of the center. The trial court
agreed with the Board, but suggested what night be a proper
initiative. A second initiative was also rejected by the Board.
The trial court denied the plaintiffs' motion for declaratory
relief and they appealed. A three-judge division of the D.C.
Court of Appeals affirmed the trial court. The en banc court
reheard the case.
The District government's initial brief focused on the
distinction between "legislative" and "administrative" matters as
a basis for a narrow reading of the initiative. This approach
conflicted with the District government's position that Congress
intended a broad delegation of legislative authority to the home
rule government. The revised brief avoided a restrictive
interpretation of the Council's delegated powers.
Attorneys for the plaintiffs: Williams F. Schultz, Esq.,
Diane B. Cohen, Esq, and Alan B. Morrison, Esq, 2000 P Street,
N.W., Washington, D.C, Washington, D.C. 20036 (202-833-3000)
Attorneys for amici: James H. Heller, Esq., 1275 K Street,
N.W., Washington, D.C. 20005 (202-898-4800), and Arthur B.
Spitzer, Esq., 1400 20th Street, N.W. , Washington, D.C. 20036
(202-457-0800); Stephen Truitt, Esq., 1300 19th Street, N.W. ,
Washington, D.C. 20036 (202-828-1452), and Deborah Calloway, Esq.
(unlisted in 1993 Legal Register) , Jerry A. Moore III, 800 K Street,
N.W., Washington, D.C. 20001 (202-408-3220), and J. Kirkwood
White, Esq., 2100 Pennsylvania Av., N.W., Washington, D.C. 20037
(202-881-1460) .
Attorney for the Board of Elections and Ethics: William H.
Lewis, 441 Fourth Street, N.W. , Washington, D.c. 20001 (202-727-
2194) .
Constitutional practices'. Morgan et al. v. Barry, et al , 596 F. Supp.
879 (D. D.C. 1984). This class action suit sought injunctive
relief against strip and squat searches and spraying of females
arrested and temporary detained at the D.C. Jail, and the
' ■'■■■ 15
58
practice of holding males and females in inadequately ventilated
vans. In response to the plaintiffs' first demand, the District
government entered into an agreement to stop such searches in the
absence of probable abuse to believe the arrestee had weapons,
drugs, or other contraband on her person. The District was
facing the likelihood of a court order that it had violated an
order entered in Langley v. Washington, No. 75-2058 (D.D.C. Dec. 23,
1975) . The second demand, involving the vans, resulted in
lengthy negotiations. But early resolution of the first demand
resulted in the almost immediate cessation of the general
practice of strip and squat searches of females awaiting
arraignment.
Attorney for the plaintiffs: Arthur Spitzer, Esq., 1400 20th
Street, N.W., Washington, D.C. 20036 (202-457-0800); Nina Kraut,
Esq., 3815 Yuma Street, N.W., Washington, D.C. 20016 (202-745-
0300) .
Scope of District government's public duty: Warren et al. v. District of
Columbia, 444 A. 2d 1 (D.C. 1981) (en banc). This case involved
the public duty doctrine, arising in a negligence action brought
by two women who were assaulted in their home after the police
failed to respond to their telephone calls. A three- judge
division of the D.C. Court of Appeals reversed the trial court's
dismissal of the complaint for failure to state a cause of
action. The en banc court concluded, however, that a special
relationship did not arise as a result of the promise of the
police to respond.
Attorney for plaintiffs/appellants: Steven A. Friedman,
Esq., 6404 Ivy Lane, Greenbelt, Md. 22701 (301-220-2200).
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal matters that did not
involve litigation. Describe the nature of your participation in
this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been waived) .
As Corporation Counsel for the District government, I was
involved in developing the government's legal position in a large
number of cases. This occurred at a significant time, shortly
after the home rule government was formed, when it was testing
the scope of the powers delegated to it by Congress. Having
worked on the legislation that created the new form of local
self-government, I was in an almost unique position to guide the
District's legal response.
This was accomplished through weekly meetings with Division
Deputies, who also submitted monthly litigation reports, and
meeting on nearly a daily basis with supervising Deputies and
16
59
trial attorneys as well as the affected department officials and
administrative agencies to develop the District government's
litigation strategy. In addition, I reviewed and edited
pleadings and briefs. I was fortunate, as well, to have the
assistance of very able attorneys, including Deputies whom I
recruited or promoted from within the ranXs.
Such joint efforts enabled the District government to
prevail at times when it otherwise night not have prevailed, see,
e.g., Convention Center Referendum Committee et at. v. D.C. Bd. of Elec. & Ethics,
etal., 438 A. 2d 132 (D.C. 1981) (en banc), or forestalled having
harsher judgments entered against the government. See, e.g., Morgan
et al. V. Barry et al. , 596 F. Supp. (D.D.C. 1984) (strip and squat
searches of female prisoners) . Most significantly, it enabled
the new home-rule District government to effectively present Its
position, consistent with congressional reservation of certain
powers and constitutional responsibilities, that the
congressional delegation of the authority under the D.C. Self-
Government and Governmental Reorganization Act of 1973, Pub. L.
93-198, was intended to be broadly construed.
Attachments (Tabs 1, 2, 3 & 4)
17
60
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services, firm
memberships, former employees, clients or customers. Please
describe the arrangements you have made to be compensated in the
future for any financial or business interest.
I will receive an annuity from the District government as a
result of more than ten years of judicial service.
2. Explain how you will resolve any potential conflicts of
interest, including the procedure you will follow in determining
these areas of concern. Identify the categories of litigation
and financial relationships that are likely to present potential
conflicts-of-interest during your initial service in the position
to which you have been nominated.
Consistent with federal law and the Code of Conduct for
United States Judges, I will continue my practice of recusing
myself in any case in which I have a financial interest in a
party. I will also recuse myself for two years from sitting on
any case involving the District of Columbia courts or court
employees, as well as from cases involving those courts and
employees that arose while I was a District of Columbia judge.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so, explain.
I have no such plans, commitments or agreements.
4 . List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends, interest,
gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more. (If you prefer to do so, copies of the
financial disclosure report, required by the Ethics in Government
Act of 1978, may be substituted here.)
See Tab 5.
5. Please complete the attached financial net worth statement in
detail.
See Tab 6.
6. Have you ever held a position or played a role in a political
61
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign, your
title and responsibilities. f 'j , yuui
I was a volunteer in several Democratic presidential
campaigns during periods when I was not otherwise employed: 1968:
Humphrey-Muskie; 1972: McGovern-Eagleton.
Attachments (Tabs 5 & 6)
62
Sources of Income 1992-93
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends, interest,
gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more. (If you prefer to do so, copies of the
financial disclosure report, required by the Ethics in Government
Act of 1978, may be substituted here.)
Sources of all income received in 1992 and 1993
??iJ?pdar i??2
Judicial Salary:
$130,087.40
Investment income:
IBM sh.
$1,077
Waste Mgmt sh. )
$319
Phillip Morris sh.)
Prudential Bank
$994
Am. Sec. Bk
$846
Citibank
$2,967
Second Nat. Fed.
Sav. Bk
$2,552
Meritor Sav. Bk
$7,560
Crestar Bk
$1,885
Nat. Trust Group
$436
Calendar 1993
Judicial- Salary
(to 12-11-93)
$142,032.32
Investment Income:
Phillip Morris sh.) $277
Waste Mgt (now )
WMX Techs) )
Nat. Trust Group $2,534.90
Reinvested, in
unlisted securities
(see schedule
attached , at
Tab 6)
63
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement
which itemizes in detail all assets ) including bank accounts,
real estate, securities, trusts, investments, and other financial
holdings) all liabilities (including debts, mortgages, loans, and
other financial obligations) of yourself, your spouse, and other
immediate members of your household.
AgSET?
Cash on hand in banks
Crestar Bank
Citibank
U.S. Government Securities:
Unlisted Securities
(see attached schedule)
Accounts and notes
receivable
$29,738
$32,419
none
$499,590
none
LIABILITIES
No debts, mortgages,
loans or other
financial obligations
Real Estate owned:
111 Third St. , N.E.
(1993 assessed value) $332,780
Real Estate mortgages
receivable none
Autos and other personal property
1985 Toyota Corolla
estimate:
household furnishings:
estimate:
Cash value - life insurance
Other assets: itemize:
Judicial Retirement
contributions
$3,000
$10,000
$0
$109,214
Total Assets
$1,016,741 Total Liabilities: $0
Net worth $1,016,741
64
Total liabilities
and net worth:
$1,016,741
CONTINGENT LIABILITIES
GENERAL INFORMATION
None
Mo assets pledged.
I am not a defendant in
any suits or legal
actions, with the
possible exception of any
pending lawsuit against
the Court that names me
in my official capacity
as a judge of the D.C.
Court of Appeals.'
I have never declared
bankruptcy .
65
Unlisted Securities
Schedule^
1. Bond Accounts
AIM Ltd. Mat. Treas. $61,492
Calvert Tax-Free Resvs. $43,100
2. Stock Accounts
American Funds:
Investment Co. Amer. $112,603
Washington Mutual Inv Fd $88,414
New Perspective Fd $51,435
Growth Fd America $54,462
3. Balanced Accounts
Defrd Incm-Lincoln
Nat Managed Fd $62,340
IRA Incm Fd America $25,744
TOTAL $499,590
^ Figures based on latest 1993 reports
66
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
1972-74: Member of the Board of Directors of Wider
Opportunities for Women. This organization developed training
programs to assist poor, mostly minority, women in gaining skills
so that they could become gainfully employed. Meetings on
approximately a monthly basis.
1972-74: Member of the Friends of the D.C. Superior Court.
This organization developed and ran a child care center for
parents who were involved in court proceedings and had no where
else to leave their children. Meetings held approximately every
other month.
1979-83: As Corporation Counsel, 1979-83, I met with
numerous community groups and a variety of persons, most
frequently at night and on weekends, to understand how the
District's legal office could respond more effectively to
concerns of the disadvantaged. Such meetings, for example, led
to my testimony in support to legislation to improve police
response to domestic violence and work to improve the Citizens
Complaint Center. Also, working with representatives of the
United States Department of Health, Education and Welfare, I
established a child support enforcement section, resulting in
Increased collections. I also took steps to ensure that greater
efforts were made in the areas of child abuse and neglect as well
as in the prosecution of absentee slum landlords. To ensure
continued responsiveness to the concerns of the disadvantaged, I
also recruited lawyers who had worked in legal services programs.
1982-90: Trustee at Radcllffe College (1982 to 1988) and a
member of the Visiting Committee at Harvard Law School (1984 to
1990) . I urged the expansion of financial aid programs so that
disadvantaged youngsters would be able to attend these schools
and so that their graduates could afford to work In the public
sector.
1988 to present: As Chief Judge and Chair of the Joint
Committee on Judicial Administration (the policy-making body of
the District of Columbia courts) , I proposed and established task
forces on gender and racial and ethnic bias in the courts.
Although a number of state court systems had conducted gender
bias studies, and a few had undertaken racial bias studies, only
67
the District of Columbia courts pursued both areas
simultaneously. This arose from my understanding that in urban
courts gender issues, particularly as they affect the
disadvantaged seeking relief in the courts, often involve issues
of race and ethnicity, and vice versa. Because the sources of
the biases are different, however, separate task forces were
needed. But, by working simultaneously, and holding some joint
public meetings, the task forces produced a Final Report with a
comprehensive series of recommendations. I arranged for the
Annual Judicial Conference of the judges and the Bar to pursue
the issues presented in the Final Report. Thereafter, I
contacted task force members to serve on an advisory committee to
assist the Joint Committee in overseeing implementation of the
recommendations. One year after receiving the Final Report, the
Joint Committee issued a report demonstrating major
accomplishments in implementing the task forces' recommendations.
See Annual Report of the District of Columbia Courts, at Tab 4 .
As Chief Judge, in addition to making numerous speeches in
the community, I have also participated in the annual law day
programs involving high school students from public and private
schools.
2. The American Bar Association's Commentary on its Code of
Judicial Conduct states that it is inappropriate for a judge to
hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do you
currently belong, or have you belonged, to any organization which
discriminates — through either formal membership requirements or
the practical implementation of membership policies? If so,
list, with dates of membership. What have you done to try to
change these policies?
I do not belong, nor have I belonged, to such organizations.
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts? If
so, did it recommend your nomination? Please describe your
experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to your
nomination and interviews in which you participated) .
There is no selection commission in the District of Columbia
to recommend candidates for nomination to the U.S. Court of
Appeals for the District of Columbia Circuit.
4 . Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue, or
question? If so, please explain.
68
No such discussion has occurred.
5. Please discuss your views on the following criticism
involving "judicial activism":
"The role of the Federal judiciary within the Federal
government, and within society generally, has become the subject
of increasing controversy in recent years. It has become the
target of both popular and academic criticism that alleges that
the judicial branch has usurped many of the prerogatives of other
branches and levels of government. Some of the characteristics
of this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extending to broad classes of
individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and society;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities."
The Judicial Branch must respect the roles of the Executive
and Legislative Branches. The principle of separation of powers
is fundamental to our system of government. Cases and
controversies are to be decided by the courts. Hence, parties
must properly be before the court and the issues must be ripe for
decision. The criticism of "judicial activism" is to be
distinguished, however, from matters that are properly before the
court where the appropriate disposition of the case or
controversy may have far-reaching consequences. My experience
indicates that judges are loath to assume administrative
responsibilities much less impose broad affirmative duties on
government and society that exceed the requirements of law in the
case pending before the court.
69
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any fomer names used.)
Michael A. Ponsor
2. Address: List current place of residence and office
address (es) .
Home: 387 Bay Road Office: U.S. District Court
Amherst, MA 01002 1550 Main St., Rm. 512
Springfield, MA 01103
3. Date and place of birth.
August 13, 1946. Chicago, Illinois.
4. Marital Status (include maiden neune of wife, or husband's
naune) . List spouse's occupation, employer's name and business
address (es) .
Divorced.
5. Education: List each college and law school you have attended,
including dates of attendance, degrees received, and dates
degrees were granted.
Yale Law School: 1971-73, 1974-75; J.D., January 1975.
Pembroke College, Oxford University, England: 1969-71; B.A.
(second class honours), June 1971; M.A., March 1979.
Harvard University: 1964-67, 1968-69; B.A. (magna cum laudel .
June 1969.
6. Employment Record; List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
_, January 1984 to present: United States Magistrate Judge,
U. S. District Court, Springfield, Massachusetts.
Januarv 1988 to present: Professor of Law (Adjunct), Western
New England College Law School, Springfield, Massachusetts.
70
January 1989 to 1991; Professor of Law (Adjunct) , Yale Law
School, New Haven, Connecticut.
September 1978 to December 1983; Partner, Brown, Hart &
Ponsor, 35 South Pleasant St., Amherst, Massachusetts.
September 1976 to September 1978: Associate, Homans, Hamilton
& Lamson, 1 Court St., Boston, Massachusetts.
September 1975 to September 1976; Law Clerk, Hon. Joseph L.
Tauro, U. S. District Court, Post Office & Courthouse, Boston,
MA.
Summer 1974; summer clerk. Hill & Barlow, Boston, MA
Summers 1969 and 1971; General assignment reporter,
Minneapolis Tribune, Minneapolis, MN
July 1967 to August 1968; Teacber, Kenya Institute of
Administration, Nairobi, Kenya (on leave from Harvar'd) .
7. Military Service: Have you had any milieory service? If so,
give particulars, including dates, branch of service, rank or
rate, serial number and type of discharge received.
None
8. Honors and Awards ; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
Rhodes Scholarship
Dean's List, all years at Harvard.
Honorary Scholarships for academic excellence, all years at
Harvard.
9. Bar Associations; List all bar associations, legal or
judicial-related committees or conferences of which you are or
have been a member and give the titles and dates of any
offices which you have held in such groups.
American, Massachusetts, Hampshire County and Boston Bar
Associations. National Council of United States Magistrate
Judges .
71
10. other Memberships; List all organizations to which you belong
that are active in lobbying before public bodies. Please list
all other organizations to which you belong.
I belong to no organizations actively lobbying before
public bodies. Other organizations I belong to are:
American Field Service;
Association of American Rhodes Scholars;
Oxford Society;
United State Magistrate Judges Association;
The Finnish-American Society.
South Congregational Church
11. Court Admission; List all courts in which you have been
admitted to practice, with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
United States Supreme Court, 1980
Massachusetts Supreme Judicial Court, 1975
U. S. Circuit Court of Appeals, First Circuit, 1976
U. S. District Court, District of Massachusetts, 1976
12. Published Writings; List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Committee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press
reports about the speech, and they are readily available to
you, please supply them.
I am currently co-editor of an updated edition of Civil
Litigation in the First Circuit, which will be published in
1994 by Massachusetts Continuing Legal Education. I will be
writing two sections of the book: one on arguing motions (now
in draft form) , the other on special features of civil
practice in the District of Massachusetts. A copy of my draft
"Avoiding Catastrophe at Oral Argument" is included in my
3
72
Appendix as Section S.
A list of speeches and other presentations I have made is
appended to this form as Attachment 1. I am not aware of any
press coverage of these events. The presentations were not
written, and I currently have no documents embodying them.
13. Health; What is the present state of your health? List the
date of your last physical examination.
My health is excellent. My last physical exam was on 8/4/93.
14. Judicial Office; State (chronologically) any judicial offices
you have held, whether such position was elected or appointed,
and a description of the jurisdiction of each such court.
I was appointed U.S. Magistrate Judge for the United
States District Court for the District of Massachusetts
(Western Section) on January 6, 1984 and reappointed to
a second eight-year term on January 6, 1992. The Western
Section exercises jurisdiction over all federal criminal
and civil cases in the four counties of western Massa-
chusettts.
As the Magistrate Judge in the Western Section, my
responsibilities include: (1) review of all applications for
search, seizure, arrest or inspection warrants in these
counties; (2) arraignments, initial appearances and detention
hearings in all criminal cases; (3) issuance of rulings on
non-dispositive pre-trial motions in all crxf^Ppl and civil
cases; (4) issuance of reports and recommendations on
dispositive motions in criminal and civil cases, following
4
73
conduct of evidentiary hearings, if necessary; (5) jury and
non-jury trials in criminal misdemeanor cases and in civil
cases, with the consent of the parties.
15. Citations; If you are or have been a judge, provide: (1)
citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or where
your judgment was affirmed with significant criticism of your
substantive or procedural rulings; emd (3) citations for
significant opinions on federal or state constitutional
issues, together with the citation to appellate court rulings
on such opinions. If amy of the opinions listed were not
officially reported, please provide copies of the opinions.
(1) Ten Significant Opinions.
A. Gunther v. County of Franklin. C.A. 91-30108 (October 15,
1992) . Report and Recommendation addressing the constitu-
tional rights of inmates at correctional facilities suffering
from HIV-related illnesses, and recommending that defendants'
motion for summary judgment be denied. This recommendation
has been adopted by Sr. Judge Frank H. Freedman on September
29, 1993. See Appendix A.
B. Mattoon v. Pittsfield. C.A. 88-0128-F (July 17, 1991).
Report and Recommendation addressing the preemptive impact of
the Safe Drinking Water Act, 42 U.S. C. § 300f, on plaintiffs'
federal and state claims against the City of Pittsfield and
others for an outbreak of waterborne giardiasis caused by
beaversf in the city's reservoirs, recommending allowance of
the defendants' motions for summary judgment. This recommen-
dation was adopted by the district court and affirmed in
5
74
Mattoon v. Pittsfield. 980 F.2d 1 (1st Cir. 1992). See
Appendix B.
C. Wilkes V. Heritage Bancorp C.A. 90-11151-F and 90-11285-F
(November 21, 1990) . Report and Recommendation addressing the
sufficiency of a complaint against a bank for violations of
sections 10b and 20 of the Securities Exchange Act of 1934,
concluding that the allegations failed to state a claim under
Fed. R. Civ. P. 12(b)(6) and, further, failed to satisfy the
particularity requirements of Fed. R. Civ. P. 9(b), recommend-
ing that the complaint be dismissed without prejudice to a
motion to amend. The recommendation was subsequently adopted
by the district court in Wilkes v. Heritage Bancorp. Inc.. 767
F. Supp. 1166 (D. Mass. 1991) . See Appendix C.
D. Frazier v. Bailey. C.A. 89-30098 (December 14, 1990).
Report and Recommendation addressing the entitlement of
counsellors, social workers and other medical personnel
involved in a child sexual abuse case to qualified immunity
from claims brought under 42 U.S. C. § 1983 by the children's
father, the purported abuser, alleging violations of his
constitutional rights, recommending that defendants' motions
for summary judgment be allowed. This report and recommenda-
tion was subsequently adopted by the district court and
affirmed in Frazier v. Bailev. 957 F.2d 920 (1st Cir. 1992).
See Appendix D.
75
E. Russell Harrington Cutlery. Inc. v. Lamson & Goodnow Mfg.
Co. . C.A. No. 89-01077 (Dec. 26, 1989) . Memorandum and Order
addressing plaintiff's claim that it possessed the exclusive
right, under common law and statutory trademark, to
manufacture white-handled knives in the United States and
Canada, and recommending (with a bow to Moby Dick, and the
"whiteness of the whale") that the defendants' motion for
summary judgment be allowed, on the ground that, generally
speaking, a manufacturer cannot obtain a trademark on a color.
Since this was a consent case pursuant to Fed. R. Civ. P. 73,
this ruling was the final order in the case. It was not
appealed. See Appendix E.
F. Colon V. Casco. Inc. . C.A. 86-0177-F (September 15,
1988) . Memorandum and Order awarding damages to migrant
workers for violations of the Migrant and Seasonal
Agricultural Workers Protection Act, 29 U.S.C. § 1801,
following a three-day trial under Fed. R. Civ. P. 73. On
appeal, the district court, acting as a court of appeals,
affirmed except for the issue of prejudgment interest, which
was awarded on remand. The district court opinion is reported
at 716 F. Supp. 688 (D. Mass. 1988) . See Appendix F.
G. Rodriguez y. Springfield. 127 F.R.D. 426 (D. Mass.
1989) . Memorandum and Order addressing the difficult issue of
a civil rights plaintiff's entitlement to disclosure of the
76
identity of a confidential informant whose misinformation to
the police regarding drug dealing led to a mistaken search of
her apartment, balancing "with as much subtlety as the court
can muster" — Id. at 431 — the plaintiff's right to this
information to prosecute her claim of police misconduct,
against law enforcement concerns about the protection of
sources. See Appendix G.
H. M.S. Chambers & Son. Inc. v. Tambrands. Inc.. 118 F.R.D.
274 (D. Mass. 1987) . Memorandum and Order, adopted by then
Chief Judge Freedman without objection, awarding defendants
$17,181.13 attorneys fees as a sanction pursuant to Fed. R.
Civ. P. 11, against the plaintiff's attorneys for knowingly
filing suit in an improper venue and prosecuting the suit
under the name of a plaintiff they knew, or should have known,
was not entitled to relief. At the time this was one of the
stiffest sanctions under Rule 11 in this Circuit. See
Appendix H.
I. Brown V . Ashe . C.A. 81-280-F. February 21, 1989.
Memorandum and order capping the inmate population at the
Heunpden County Jail and House of Correction at 450. This
order issued in response to a visit by the court to the
century-old facility and the revelation that the institution,
which had a rated capacity of 314, housed 724 prisoners. The
cap remained in place until the fall of 1992, when the new
8
77
jail and house of corrections opened in Ludlow. All parties
consented to trial of the case before me under Fed. R. Civ. P.
73. The order was not appealed. See Appendix I.
J. United States v. Joseph T. Keating. CR. 87-167-F. June 20,
1988. Report and Recommendation urging allowance of the
defendant's motion to dismiss for improper destruction of
evidence, violation of the Speedy Trial Act and prosecutorial
vindictiveness. The basis of the recommendation was the
misrepresentation to the court by the government that an 86-
second gap in a tape recording of a conversation between a DEA
agent and the defendant, which defendant claimed was
exculpatory, was innocently caused by excessive distance
between the transmitter and receiver. In fact, following this
representation to the court, made by the agent under oath, an
F.B.I, expert testified that the gap was caused by a
deliberate erasure. The recommendation was adopted by the
district court and the indictment was dismissed with
prejudice. See Appendix J.
(2) Appellate Opinions.
A. Sweeney v. Westvaco Co. . 926 F. 2d 29 (1st Cir. 1991) .
Plaintiff brought a loss of consortium action against her
husband's employer and supervisors alleging negligent
infliction of emotional distress. After a jury trial in which
the plaintiff was awarded substantial damages, the defendant
78
moved for judgment n.o.v. . and I allowed the motion,
concluding that the suit was preempted under the Labor
Management Relations Act, 29 U.S.C. § 185, and that the
defendant had not waived the defense by failing to raise it
before the verdict. The First Circuit affirmed my rulings
against claims of trial-related errors, but — while
recognizing that the defendant's argument was "a strong one,"
Id. at 38 — held that the defendant's failure to raise the
preemption defense earlier constituted a waiver. The case was
remanded with instructions to reinstate the jury's verdict.
B. Santiago v. Fenton. 891 F.2d 373 (1st Cir. 1989).
Plaintiff brought a civil rights action under both 42 U.S.C.
Section 1983 and state common law. Some claims and defendants
dropped from the case following rulings on motions for summary
judgment. At the close of the evidence I directed verdicts
for the remaining defendant on the state tort claims and
federal and state civil rights claims for false arrest and
imprisonment, malicious prosecution, abuse of process and
conspiracy, on the ground that the uncontested evidence
demonstrated that the defendant had probable cause to arrest
the plaintiff. The claim for excessive force went to the jury
and resulted in a damage award to the plaintiff. On appeal,
the First Circuit affirmed in part, but reversed the grants of
directed verdicts on the state tort claims of false arrest and
imprisonment, malicious prosecution and abuse of process, and
79
the state and federal civil rights claims for illegal arrest
and civil rights conspiracy. The case was remanded for a new
trial on these claims and subsequently settled.
C. Colon V. Casco. Inc.. 716 F. Supp. 688 (D. Mass. 1989).
This was an action brought under the Migrant and Seasonal
Agricultural Worker Protection Act, 29 U.S.C. § 1801, tried
before me under Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c).
The parties opted to pursue their appeal before the district
court under 28 U.S.C. § 636(c)(4). My findings and rulings
were affirmed against a broad-based appeal by the defendants,
but I was reversed on plaintiffs' cross appeal for denial of
prejudgment interest. Id. at 695. The case was remanded for
an assessment of prejudgment interest.
D. Librera v. United States. 718 F. Supp. Ill (D. Mass.
1989) . Plaintiffs brought a slip-and-fall action against the
United States under the Federal Tort Claims Act after a fall
at the Shelbume Falls Post Office. Following a non-jury
trial I awarded damages in the amount of $124,151.82. As with
Colon above, the case was tried before me by consent with the
appeal to go to the district court. In an unpublished opinion
dated October 24, 1988 the district court affirmed
"substantially all" of my decision, but remanded for further
findings, regarding "the respective lieJailities of the United
States and Corliss [a private contractor, whose negligence
11
80
arguably contributed to plaintiff's injury], and for a
reduction in the award if appropriate." Id. at 112. On
December 8, 1988 I issued my Memorandum on Remand finding that
the plaintiff's injury was indivisible, that the United States
was itself negligent, that this negligence was a substantial
factor in causing the plaintiff's injury and that, as a
result, the United States was jointly and severally liable for
the entire damage award. This decision was affirmed by the
district court on appeal in the ruling cited above.
The four cases summarized above are the only appellate
opinions where my decisions were reversed or significantly
criticized.
(3) significant Opinions on Constitutional Issues.
A large percentage of the recommendations I have rendered
since 1984 have touched on constitutional issues the parties, at
least, deemed significant. The Gunther, Frazier and Keating cases
at Appendix A, D and J are examples of these. Hundreds more
rulings on non-dispositive motions, particularly in criminal cases,
were drafted against a backdrop of constitutional law. See e.g.
Rodriguez v. Springfield. 127 F.R.D. 426 (D. Mass. 1989) and United
states V. Noetzel. 124 F.R.D. 518 (D. Mass. 1989). The following
are significant opinions on constitutional issues.
81
A. United States of America v. Yana II Kim. CR. 85-0151-F.
October 24, 1985. The court recommended allowance of defendant's
motion to suppress on the ground that the government investigators
had deliberately withheld Miranda warnings in an effort to
intimidate the defendant into making incriminating statements. The
defendant pled guilty while the government's objections to this
recommendation were pending. See Appendix K.
B. United States of America v. Single Family Dwelling. C.A.
No. 85-0246-F (November 26, 1986). This memorandum recommended the
dismissal of ten civil forfeiture actions on the ground that the
procedure was unconstitutional as applied, or alternatively, that
the practices employed by the government in effecting the
forfeitures were so flawed that dismissal was appropriate. The
recommendation was adopted by the district court, and all the
complaints were dismissed. Although the discussion in the
memorandum is somewhat anachronistic now, given subsequent
refinements in procedures, at the time it offered one of the first
constitutional analyses of civil forfeiture. See Appendix L.
C. United States of America v. Scibelli. CR. 85-0399-F.
August 13, 1987. This recommendation urged denial of defendant's
broad-ranging motion to suppress electronic surveillance at his
place of business. It addressed a number of possible grounds for
suppression of the fruits of electronic surveillance. The
recommendation was adopted by the district court and the defendant
13
82
eventually pled guilty. See Appendix M.
D. Plathe v. Coaains. C.A. 86-0273-F. July 11, 1988. This
recommendation offers an instance in a civil rights case alleging
police misconduct, where the court found that the reasonableness of
the force used did not raise a jury question. Defendant was a
female state trooper confronting the plaintiff, a much larger male
who admitted resisting arrest. She incapacitated him with a single
blow to the groin with her flashlight in order to apply handcuffs.
Plaintiff suffered no injury beyond the initial shock, and the
court found the force reasonable as a matter of law. The
recommendation was adopted by the district court and summary
judgment was entered for the defendant. See Appendix N.
E. United States of America v. Hadfield. CR. 88-0254-F. March
8, 1989. This recommendation found that defendants had made a
sufficient preliminary showing, pursuant to Franks v. Delaware. 438
U.S. 154 (19'78) , that false statements were contained in the search
warrant supporting the search of their residence, and an
evidentiary hearing was appropriate. The government objected to
the recommendation and submitted additional material to the
district court on review de novo that persuaded Judge Freedman not
to adopt the recommendation. This decision was later affirmed at
918 F. 2d 987 (1st Cir. 1987), cert, denied 111 S. Ct. 2062 (1991).
See Appendix O.
14 -\
83
F- Kucefski v. Desv. C.A. 89-30167-F. October 8, 1992. This
memorandum discusses the elements of a claim for false arrest and,
more significantly, at 12 et seq. . the allegations required for a
claim of civil rights conspiracy under 42 U.S.C. section 1985. The
recommendation also discusses the factual prerequisites for a claim
under the Massachusetts Civil Rights Act. It recommends that
summary judgment be granted as to the claim for false arrest and
otherwise denied. The recommendation was adopted by the district
court on October 30, 1992. See Appendix P.
G. Smith V. Springfield. C.A. 88-0165-F. October 13, 1992.
The recommendation addresses a claim under 42 U.S.C. sections 1983
and 1985 for civil rights violations arising from a "protective
sweep" by federal state law enforcement officers of the plaintiff's
residence. The memorandum incorporates a previous report, dated
March 2, 1990, addressing the claims of excessive force and
rejecting the defendants' claims of qualified immunity. This
recommendation was adopted by the district court on September 24,
1993. See Appendix Q.
H. Pvle V. The South Hadlev School rnTmiii-n-g«>, c.A. 93-30102-
F. June 8, 1993. Plaintiff high school students sought a
temporary restraining order barring any attempt by the defendant
School Committee to prohibit them from wearing two mildly vulgar T-
shirts in school. The court denied the motion, concluding that the
plaintiffs were unlikely to prove a First Amendment violation based
15
84
upon the defendants' decision to limit clothing with sexually
provocative slogans, where affidavits from the teachers suggested
that such limitation protected students and enhanced the learning
environment. This was a consent case under Fed. R. Civ. P. 73; the
denial of the T.R.O. was not appealable. See Appendix R.
16. Public Office; State (chronologically) any public offices you
have held, other than judicial offices, including the terms of
service and whether such positions were elected or appointed.
State (chronologically) any unsuccessful candidacies for
elective public office.
In 1979 I was appointed the Monitor to oversee
implementation of the consent decree entered in Brewster v.
Dukakis . C.A. 76-4423-F. I served until the end of 1983.
17. Legal Career;
a. Describe chronologically your law practice and
experience after graduation from law school including;
1. whether you served as clerk to a judge and if so,
the name of the judge, the court, and the dates of
the period you were a clerk;
2. whether you practiced alone, and if so, the
addresses and dates;
3. the dates, name and addresses of law fins or
offices, companies or governmental agencies with
which you have been connected, and the nature of
your connection with each.
I clerked for U.S. District Judge Joseph L. Tauro in
Boston, 1975-76.
Following my clerkship, I worked as an associate at a
firm then named Homans, Hamilton and Lamson, 1976-78, located
at One Court St., Boston. From 1978 until 1983 I was a
16
85
partner at Brown, Hart and Ponsor, 37 S. Pleasant St.,
Amherst, Massachusetts. In January of 1984 I was appointed to
my present position. I have never practiced alone.
b. 1. What has been the general character of your law
practice, dividing it into periods with dates if its
character has changed over the years?
2. Describe your typical former clients, and mention
the areas, if any, in which you have specialized.
From 1976 to 1978 criminal defense work predominated,
through my association with William P. Homans, Jr. As a
result, I assisted in felony trials in state and federal
court, including cases involving charges of arson, fraud,
rape, armed robbery and assault. I exercised sole
responsibility for a number of state district court trials,
including assault and battery on a police officer, breaking
and entering, possession of stolen goods, larceny and driving
under the influence. My clientele was mainly individuals of
very modest means or, by appointment, indigent persons.
Another element of my practice was plaintiffs' civil rights
litigation. These clients included a group of students
asserting claims against Boston University for suppressing
their newspaper, and union organizers contesting unfair labor
practices and intentional infliction of emotional distress.
Following the move to Amherst in 1978 my practice
gradually became more civil, though I still occasionally
17
86
represented clients charged in criminal cases in federal
and state court. Plaintiffs' personal injury litigation
began to absorb more of my time, and I developed a brisk
domestic practice. Mine was a rewarding small-town
practice, and my typical clients were individuals charged
with crime, negligently injured or in the grip of
matrimonial difficulties. Other clients were local
businesses as well as Hampshire College, which I
represented in disputes with its faculty.
Beginning in 1979, at the suggestion of now. Superior
Court Judge Catherine White, who was then representing the
Commonwealth, and with the approval of plaintiff's counsel, I
was appointed by the U.S. District Court the Monitor for the
Brewster v. Dukakis consent degree. While the decree was very
elaborate, it essentially called for a gradual reduction in
the patient population of the Northampton State Hospital and
the transfer of patients into smaller, community-based
treatment facilities. My responsibilities included overseeing
implementation of the decree to insure its provisions were
carried out, particularly those aimed at patient safety and
care; reporting to the court on the progress of
implementation; resolving disputes between counsel for the
plaintiff patients and the Commonwealth, and advising the
court when unresolved disputes broke into active litigation.
After my appointment this work occupied a third to a half of
my professional life.
18
87
since January of 1984, I have performed my duties as
a Magistrate Judge.
c. 1. Did you appear in court frequently, occasionally, or
not at all? If the frequency of your appearances in
court varied, describe each such variance, giving
dates.
During 1976-78 in Boston, I typically appeared in court
one or more times per week for hearings or trials. From 1978
to 1984 the frequency of my appearance varied but on the
average I was in court two or three times a month for either
a trial, conference or hearing.
2. What percentage of these appearance was in;
(a) federal courts;
(b) state courts of record;
(c) other courts.
Approximately eighty percent of these appearances were in
state courts of record, the balance in federal court.
3. What percentage of your litigation was:
(a) civil;
(b) criminal.
From 1976-78, when I practiced in Boston, eighty percent
of my litigation was criminal; after my move to Amherst, about
eighty percent of my litigation was civil.
4. State the number of cases in courts of record you
19
88
tried to verdict or judgment (rather than settled) /
indicating whether you were sole counsel, chief
counsel, or associate counsel.
My best estimate is that during 1976-78 while in Boston
I tried approximately six major felony cases to judgment
either in federal court or in state Superior Court, always as
associate counsel. During the s£une period, I tried as sole
counsel approximately five misdemeanor cases to verdict in
various state district courts. Following my move to Amherst,
I tried two major felony cases to verdict in federal court,
one as associate counsel, and one — a three-week trial — as
sole counsel. I tried a felony case to verdict in Superior
Court as sole counsel, a misdemeanor case to verdict in
Hampshire district court as sole counsel and at least two
civil cases to verdict in Hcunpshire district court as sole
counsel.
5. What percentage of these trials was:
(a) jury;
(b) non-jury.
In cases going to verdict approximately sixty percent
have been jury trials, the balance non-jury.
18. Litigation; Describe the ten most significant litigated
natters which you personally handled. Give the citations, if
the cases were reported, and the docket number and date if
unreported. Give a capsule summary of the substance of each
case. Identify the party or parties whom you represented;
describe in detail the nature of your participation in the
litigation and the final disposition of the case. Also state
as to each case:
20
89
(a) the date of representation;
(b) the name of the court and the name of the judge or judges
before whom the case was litigated; and
(c) the individual name, addresses and telephone numbers of
co-counsel and of principal counsel for each of the other
parties.
It is difficult to address this question at the level of
detail requested, because it seeks information from the time
of my law practice, ten or more years ago. The following is
my best effort, organized chronologically.
A. Commonwealth v. Edwin Gumbs. Docket number unknown.
Along with William P. Homans, Jr. (now of 215 First Street,
Cambridge, MA 02142), I represented the defendant on a charge
of arson before a jury in the Suffolk Superior Court in
roughly 1977. I do not recall the judge, but the prosecutor
was Sandra L. Hamlin, now a Superior Court judge. New Court
House, Pemberton Square Boston, MA 02108. The trial resulted
in an acquittal. I assisted throughout the preparation and
trial of the case but did not conduct direct or cross-
examination.
B. Commonwealth v. Richard Liebman. Docket number
unknown. Again, along with Attorney Homans I represented the
defendant, an attorney charged with masterminding a robbery.
The case was tried to a jury in Middlesex Superior Court
before Judge Alan J, Dimond during the winter of 1977-78. The
21
90
prosecutor was John K. Markey, now of One Financial Center,
Boston, 617-542-6000. The trial resulted in a conviction,
later reversed on appeal. Commonwealth v. Liebman. 388 Mass.
483, 446 N.E.2d 714 (1983). I assisted throughout the
preparation and trial of the case but, as in the Gumbs case,
did not actively participate at the trial itself.
C. United States v. Curt Beck. Crim. No. 78-327-F. My
client was charged under a federal indictment with
participating, along with others under the direction of
swindler and escaped convict Alan Herbert Abrahams, in a
fraudulent investment scheme. I was sole counsel for Beck in
the case, which was tried to a jury in the fall or early
winter of 1978 before U.S. District Court Judge Frank H.
Freedman in Springfield. The defendant pled guilty after 14
days of trial, subsequently shot himself — fortunately not
fatally — and eventually received a term of probation with
substantial community service. His co-defendants all went on
to be convicted. The prosecutor was then Assistant U.S.
Attorney Michael A. Collora, now at 400 Atlantic Avenue,
Boston, (617) 357-9202. Pre-trial proceedings were extensive.
See United States v. Abrahams. 466 F. Supp. 552 (D. Mass.
1978) . Counsel for co-defendants included Andrew H. Good, now
of 89 Broad St., Boston, 617-542-6663; Anthony M. Cardinale,
One Commercial Wharf, Boston, 617-523-6163, and Robert F. Peck
Jr., 265 Essex, Salem, 508-744-8180.
22
91
D. United State v. Daniel Meehan. Docket number unknown.
My client, a Pittsfield banker, was charged under a federal
indictment with extorting money from loan applicants. The
case was tried to a jury before U.S. District Court Judge
Frank H. Freedman in Springfield, Massachusetts, in
approximately 1980. I assisted in the preparation of the case
and handled some cross examination at trial, though the lion's
share of the work at the trial itself was performed by William
P. Homans, Jr. The prosecutor was Assistant U.S. Attorney
George F. Kelly, now at 1500 Main St., Box 15389, Springfield,
Mass. 01115, (413) 781-4700. The trial resulted in a
conviction.
E. Commonwealth v. Justin Gordon. Docket numbei' unknown.
My client, a University of Massachusetts undergraduate, was
charged with assault with intent to commit rape. The case was
tried to a jury in the Hampshire Superior Court before Judge
John F. Moriarty in the fall of 1980. I was sole counsel.
The prosecutor in the early stages of the case was Edward F.
Berlin, later my law partner and now an assistant attorney
general heading the western Massachusetts office at 4 36 Dwight
St., Springfield, Mass., (413) 784-1240. At trial the
assistant district attorney was John Landes, who has moved
from the area. The result of the trial was a conviction,
vacated by Judge Moriarty as against the weight of the
23
92
evidence. Prior to a new trial my client was placed on
unsupervised probation.
F. B. U. Exposure v. John Silber. Docket number unknown.
I represented a group of Boston University students who
published an undergraduate newspaper called the B.U. Exposure,
after their funding was cut off when they published an article
embarrassing to the B.U. administration. The complaint was
filed, I believe, in the Middlesex Superior Court and sought
a preliminary injunction mandating the release of the funds
for the paper. Counsel for Boston University was James N.
Esdaile, Jr., now at 75 Federal St., Boston, 02110, (617) 482-
0333. A lengthy preliminary injunction hearing occurred in
1978 before Superior Court Judge Dimond, with testimony
lasting almost an entire day, and resulting in denial of the
motion for preliminary relief. Upon my move to Amherst, the
case was taken over by the Massachusetts Civil Liberties
Union.
G. Frado V. Murphy. Docket number unknown. My client
was sued for overcharging the plaintiff for the repair and
refurbishing of his vintage Volvo two-seater. The case was
tried, jury-waived, over a number of days before Judge
Alvertus Morse, in the Northampton District Court in 1981 or
1982. Various experts were presented on both sides regarding
the value of the services performed by my client for the
24
93
plaintiff. Opposing counsel was Edward D. Etheridge, now at
64 Gothic St., Northampton, MA 01060, (413) 584-0368. The
result was a verdict for the plaintiff.
H. Commonwealth v. Shanahan. Docket number unknown. I
represented an undergraduate charged with assault and battery
on a police officer at the University of Massachusetts. The
trial took place in 1981 or 1982, non-jury, in the Northampton
District Court before Judge Kramer. The assistant district
attorney was W. Michael Goggins, now at One Court Square,
Northampton, MA 01060, (413) 586-9225. The result was an
acquittal.
I. Cave V. Cave. Docket number unknown. I represented
an Episcopal minister through a particularly tangled domestic
proceeding in an attempt to get custody of his four-year-old
son, Daniel, who was taken out of the jurisdiction by his
mother. After a hearing in 1982 or 1983 before Judge Sean M.
Dunphy of the Hampshire Probate court, the court issued an
order granting partial custody to my client. The order was
taken to the Appeals Court where Judge Charlotte A. Perretta
reversed. Opposing counsel was Jonathan Souweine, now at 39
Main St., Northampton, MA 01060, (413) 584-7331.
J. Brewster v. Dukakis. C.A. 76-4423-F. From 1978
through 1983 I was the Monitor appointed by the U. S. District
25
94
Court to oversee implementation of a consent degree mandating
^he gradual reduction of the patient census at Northampton
State Hospital through transfers to smaller, community-based
treatment facilities. In addition to reporting on the
progress of implementation, I was vigorously involved in
mediating recurrent disputes among the parties during a very
difficult period of transition, and working with the court
when litigation erupted over unresolved issues. Counsel for
the defendant Department of Mental Health was Richard Ames now
of 80 Boylston St., Boston, MA 02116, (617) 482-5200 in
coordination with a series of assistant attorneys general, the
last being William L. Pardee, One Ashburton Place, Boston, MA
02108, (617) 727-1014. Counsel for the plaintiffs were Steven
J. Schwartz and Robert D. Fleischner, both of the Center for
Public Representation, 22 Green St., Northampton, MA 01060,
(413) 586-6024. Upon my appointment as Magistrate in 1984 my
duties were passed on to a new Monitor.
19. Legal Activities; Describe the most significant legal
activities you have pursued, including significant litigation
which did not progress to trial or legal natters that did not
involve litigarion. Describe the nature of your participation
in this question, please omit any information protected by the
attorney-client privilege (unless the privilege has been
waived.)
26
95
Most Significant Legal Activities. Chronologically;
A. The Legal Rights of the Mentally 111.
During my second year in law school I coordinated the
efforts of approximately six other law students in delivering
a wide range of legal services to patients at Connecticut
Valley Hospital. In 1976, Judge Tauro's view of the Monson
State School permitted me to witness firsthand the substandard
conditions then existing at that institution. Still later,
while in private practice, I made numerous visits to
Northampton State Hospital and to dozens of small treatment
facilities for the mentally ill throughout western
Massachusetts in my role as Monitor for the Brewster consent
decree. These contacts made me, I believe, more alert to the
vulnerability of under-served segments of our population, and
to the challenges of protecting the rights of groups like the
mentally ill.
B. Teaching the Law
It is a proper part of the "legal activity" of a judge to
teach the law. Five semesters at Western New England College
Law School and two semesters at Yale Law School have given me
the chance not only to share my experience but to enjoy the
"recharging" that accompanies contact with students. Less
extended teaching opportunities, such as work in continuing
legal education, at Harvard's Trial Advocacy Workshop and at
27
96
the Attorney General's Advocacy Workshop in Washington D.C.,
have generated the scune benefits. As one of only two western
Massachusetts members of the state Advisory Committee for
implementation of the Civil Justice Reform Act a special
responsibility to the bar here has fallen on me to participate
in workshops presenting the particulars of this important
evolution of federal practice. Finally, it is especially
gratifying to be frequently selected as a trainer for my
fellow Magistrate Judges. In the past two years alone, I have
participated in programs on attorney/client privilege, summary
judgment, settlement, zmd discovery disputes at five separate
seminars in various parts of the country for Magistrate
Judges .
C. Tenure as a Magistrate Judge
In January of 1984 at the time of my appointment as the
first Magistrate Judge in Springfield, the Western Section had
836 pending civil cases. By the end of December 1992, the
combined civil caseload for Senior Judge Frank H. Freedman and
me was 341. While of course many factors contributed to this
reduction, it has been a privilege to add to the court's
resources and strengthen its eQiility to respond to the demands
placed on it.
The Magistrate Judge plays a unique role in this part of
the state, in some ways similar to that of a district court
judge. Counsel have been much more likely here to consent to
28
97
trial of civil cases before the Magistrate Judge under Fed. R.
Civ. P. 73. As a result civil jury and non-jury trials make
up a large share of my work. In 1991 and 1992 I disposed of
more civil cases by consent than all the other Magistrate
Judges in Massachusetts combined. On the criminal side, no
other Magistrate Judge is given responsibility as a matter of
course to conduct evidentiary hearings on motions to suppress.
Since 1984 over 700 written recommendations on dispositive
motions, and literally thousands of rulings on non-dispositive
motions in both civil and criminal cases, have issued over my
signature.
29
98
II. FINANCIAL DATA AMP COHFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated receipts
fron deferred income arrangements, stock, options, uncompleted
contracts and other future benefits which you expect to derive
from previous business relationships, professional services,
firm memberships, former e^loyers, clients, or customers.
Please describe the arrangements you have made to be
compensated in the future for any fintuicial or business
interest.
None, except that I have the option in the future,
of taking partial reimbursement of my Federal Employee
Retirement System contributions in lieu of an annuity.
2. Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conflicts of interest during your initial
service in the position to which you have been nominated.
No categories of litigation or financial arrangements are
likely to present potential conflicts of interest. Since my
appointment as Magistrate Judge in 1984 I have on a few
occasions confronted situations where a conflict, or
appearance of conflict, has arisen. My practice is to put the
relevant facts on the record and hear from counsel. In nearly
ten years, following the Code of Judicial Conduct, I have felt
it necessary to recuse myself ed>out four or five times.
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your
service with the court? If so, explain.
I will probably continue to teach one semester a year,
one evening a week, with the permission of the Chief Judge of
the First Circuit. Occasional, uncompensated continuing legal
30
99
education will also almost certainly remain a part of my
professional life. I have no other plans for outside
employment.
4. List sources and amount of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
other items exceeding $500 or more. (If you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.
A copy of my financial disclosure report, dated
November 22, 1993, is appended as Attachment 2.
5. Please complete the attached financial net worth statement in
detail (Add schedules as called for) .
Appended as Attachment 3 .
6. Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, date of the campaign, your
title and responsibilities.
I have never held a position or played a role in a
political campaign.
31
100
FINANCIAL DISCLOSURE REPORT ?-H.^H-Hr«"-
(5 U.3.C.A. App. 6, SS)01-1U)
1. Person Raportlng (l*«c ntaa, tizmz, mlddi* Initial)
PONSOR, Michael A.
2. CoazT or Or^anlzdCloa
U.S. District Court
Springfield, MA
3. Oaca oC Raporc
11-22-93
4. T1U.O (Article III JMgam Indicate active or
■anlor itatus; Haglatrate Judgea Indicate
fvai- or part-tlae)
U.S. Magistrate Judge
(full-time)
S. Rttporc Typa (cteck appropriate type]
^ BTonlnacloa, Data 11~19"~93
IftltlAl Annual Pinal
6. Raporting Period
through
11-22-93
7. caaabmcm or OCClca Addrsas
1550 Main Street, Room 512
Springfield, MA 01103
e. On Uia baala of xha Inforaatlon contained in rnia Raport, IC
In, In ay opinion, in coopllonca vlcn appllcania lawa and
r«9ulaCioaa
Kavlavinq Offflcttr Slvnatura
IMPORTANT NOTES: The insnucxions acamtpanying this form must be followed. Complete all parts,
cbecJdjig the NONT box for each section where you have no reportable information. Si^ on Inst page.
I. POSITIONS. (Reponlng individual only, sec pp. 7-8 of Instruaions.)
POSITION NAME OF ORGANIZATION/ENTTTY
NONll (No reportable poaltlona)
Professor of Law (ad-up.ct)
Western New England Collece Law School,
(1/93-5/93)
Snrincfield, M.A
1. AGREEME.NTS. (Reponing individual only; see p. S-9 of instructions.)
PATH P.ARTIHS A-VP THR.MS
NONH (No raportablo jcroafflenta)
II. NON-INVE5T,M5.M I INCOME. (Rcponing indi\ida3! and sccusc; see pp. 9-i: of Instrjaions.)
pat; SOt-'RCS .AVP TYPE CROSS fNCOME
iKonorana only* ij.ours. coi spoiiic's)
I I NONX (N3 re?crtJ3io r.c--ln-/e9l=on; lr.cc=e)
Salar.- as Prcfssscr of La.v (ad-,;.-.ct) a-
.\este:
';ev Zr.-\=i-z Collera Lav School
s :,ooo. :.:
101
FINANCIAL DISCLOSURE REPORT (cont'd)
Nasw of ParsoD Reporxlng
Michael A. Ponsor
Dara of Bapoz-C
11-22-93
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Includes those to spouse and dependent children; use the parentheticals "(S)" and '(DC)' to indicate reportable
reimbursements and gifts received by spouse and dependent children, respectively. See pp.13-15 of Instmctions.)
SOURCE DESCRIPTION
X I NONE {No auch Teporzabla raimfiaraamonta or glrta)
V. OTHER GIFTS, (includes those to spouse and dependent children; use the parentheticals '(S)' and '(DC)' to
' d( - J--- -"-'J _■_-._. i^__ __ .p ... -* T^_.
Q
indicate other gifts received by spouse and dependent children, respectively. See pp.15-16 of Instructions.)
SOLTtCE DESCRIPTION VALUE
NONE (Ko auca reportable glfta)
s
$
. $
$
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person responsible
for liabilitv bv usin;; the parenthetical "(S)" for separate liabilitv of spouse, "(J)" for Joint liability of reporting
indi>iduarana spouse, and '(DC)" for liabilit>- of a dependent child. See pp.l6-I8 oflnstructions.)
CREDITOR DESCRIPTION VALUE CODE'
NONE (No reportable llabllltleel
Fleet Bank Mortgage on 25 Prospect Ave.Tue, L
Greenfield, Ma.
J • r.5.:co or loss K • 515.001 to sso.ooo L - s:=,coi to sijo.ooo n - sioo.ooi to s25o,oco
.1 - S--3-C01 to 5500,000 0 - 5500,001 to S1,000,OC: ? " -ere t.lan SI, COO, 000
102
Attachment 3
FINANCIAL STATEMENT
NET WORTH
Provide a complete, current financial net worth statement which itemizes in detail all assets (including t
accounts. r«al estate, socurities. trusts, investments, and other financial holdings) all liabilities (including de
mongages. loans, and other financial obligations) of yourself, your spouse, and other Immediate member
your household. -
ASSETS
r UABILmE£
lit ij. oao
NoTti piyablt ts b*nk> — Mcurvd
Noto pcyibU to bank>— unMcurvd
Noln ptyaN* to raUUva
Notn p<)nbl« to ethtn
Accounti *nd bi'lli due
Unpaid Incom* ux
Othtr unpaid (ai and Innmt
Raal ntaia mortsign payable — add
•cAedule
CunrI mortsagn and othar Hans
payT&la
Othar datti — llamlje:
—
U.S. Cov»mm«nt i»ajnd«— add ■
—
^
Usttd Mcuhtifrw- «dd sch»dul*
—
..^
Unilfitd t^ufilin — tdd %et\9duit
—
..
^^^
1
Acfsuna and notn rvcaivabU:
—
—
^«_- ^_
Du« from T9\»t\vn and (h*nds
-
1
""■
^'fi.flO^
I
Rfii actJti e«m*d — add (chvduft
Rcir nut« mortfsffu r»c«lvtbl«
320,004
1
„.^,
1
1
«fo,oao
1
Airtoi jn<J othfr p^rwnal property
^.ooa
Citf> value — lif* (niunnct
^^
Thtiim- PufJh Ufu^
/;,od6
1
Otn«f •i»«t>— rtimlic:
^ITTO LoAKi
iliaao
1
1
M-<r.TKeiPT-PoAjrj
Total lUblhtid
NatiMinn
Total liablim« and n« worth
1
1
i
- 1
Z4<7,0dO 1
1
rail Odd
Tcui itA^ri
*3le.o«
1
l23A,^£a
CCNTINCENT UABILITIES (
CENEKAL INFORMATION
Aj •floorwr. com»««r of eu»r»nior
1
A/a any aiMO pladtodJ (Ada acnad-
uia.)
An yrsu dalandam In any aurtt or
Ifjai anonir'
Hava )Ou awr takan bananipicy? i
1
txssi C:jimi
1
Prtr»iiior. (or Trterir Jncc.TH T«i
1
1 (
Cntr lp-ec:il a«Bt
1
1 j
1
-
1
1
1
,-
♦SCHEDULE FOR REAL ESTATE:
387 Bay Rd., Amherst, residence: $290,000
25 Prospect St., Greenfield, i owner: $30,000 (total value: $120,000)
♦SCHEDULE FOR MORTGAGES:
387 Bay Rd. , $222,000
25 Prospect St., $20,000 (total $80,000)
103
FINANCIAL DISCLOSURE REPORT (confd)
HaB0 of Porsoa RaporUng
Michael A. Ponsor
Data o£ Raporc
11-22-93
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse
and dependent children; see pp. 18-27 of Instructioiis.)
(luciudlng crusc assets}
Indicara, where appLicaUe, ownar of
Zbe assot ^ ubIjj? ttie pir«nUi«U.cai
•fj}" tar joint cv-naxsriA;. oC reoort-
Ing Indiviauai aac Boooae, "ISJ" for
aepaxara o^normtLlp by eoouso, *'iDCJ"
tor owBorBnip cy dependanc cftlld.
Flaca *[Z}* aftar each asa«t.
axaapt froa prlcr dxacXoauxa.
1 !:?t»i;5«i8s^
B.
rncoBB -
xapoi-tins
parlocJ
Crt»s valna
at end of
reporting
parao<:
TraaaacxJona during xepcrclag parlod
1
CO<S«^
»2>
(e.g.,
<Uv. ,
ilj (2)
Valua
Coda-' Coila^
carger,
radeon-
IJ[ iid QJiQspt. Ires diacloauxe 1
KontJ;
Cay
(3)
- Valoa^
Codo"^
: (J-?)
[4>
sain.
Code^
Ideotiiy,o£
bcrar/aallar
{ii private
traLa»aotloa)
NONE (Bo rsportAble
llicotte, aeseu, or
One-half interest in
C
Rent
R
two-family house and
lot at 25 Prosoect
Avpnu°. Greenfield.
■I
MA (J)
2. Savmas Account
A
Int
J
Fleet Bank,
.■1
Monarch Place Office
Sprincfield, MA
Acct. No. 011000138:
07067 f9932
■.i
I
-'
^-
i
IS
;7
!
13
1
1
1
-^
1
i
j
1
:o
1
1
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;.■...! 7=;. C2: -"•33Ct Value V-Ct=ar — Zsti.Mtod
104
III. GEKERAL (PDBLIC)
1. An ethical consideration under Canon 2 of the Americim Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances and
the amount of time devoted to each.
Volunteer work has been a continuous thread in my life,
starting well before my law degree. It seems awkward to
characterize this work as "serving the disadvantaged," since
I have myself received so much from doing it.
As an undergraduate I volunteered during my freshman and
sophomore years as a tutor for inner-city high school
students. After my junior year, I spent thirteen months at
the Kenya Institute of Administration at Kabete, Kenya,
outside Nairobi, teaching English (the language of government)
to Kenyan administrators-in-training, as part of a program
sponsored by Harvard's Phillips Brooks House. After hours, my
time was spent teaching remedial English to adults, and
English enrichment to school children, at a small village near
the Institute.
At Oxford a Labour Club gave me the chance to tutor low-
income Indian immigrant children in English several hours a
week in the neighborhoods outside the center of town.
During my first year in law school I joined Yale's Legal
Services Organization, a forensic program offering legal
services to various under-served populations. My own work was
32
105
in providing legal services for institutionalized mentally ill
at Connecticut Valley Hospital in Middletovm, Connecticut.
This project occupied the summer after my first year. I was
responsible for coordinating the work of six law students on
the project during my second year, when I beceune a member of
the board of the Legal Services Organization.
During my third year the public defenders' office in New
Haven gave me the opportunity to assist in the representation
of indigent and largely minority persons charged with crimes,
including the conduct of non-jury trials by leave of court.
My practice with Attorney Homans during 1976-78 involved
a considerable amount of pro bono work, or representation of
persons of very limited means. I represented criminal
defendants on appointment and indigent clients in domestic
cases through the Massachusetts Bar Association.
Following my arrival in Amherst, I was able to return to
my interest in the legal rights of the mentally ill through my
work as the Brewster consent decree Monitor. Moreover, I
continued to represent indigent criminal defendants by
appointment and to represent indigent or low income persons in
domestic and other civil cases on a reduced or no- fee basis.
Since 1987 I have been involved with the Amherst chapter
of American Field Service, three years as its president. AFS
sponsors American youngsters for svimmer, semester or year-long
programs in foreign high schools, and brings high school
students from abroad to spend a year in the United States.
33
106
While I was president our chapter was able to raise sufficient
funds to provide scholarships for low income applicants who
had previously found the cost of the program prohibitive.
2. Th« AB«rlcan Bar Association's Commentary to its Coda of
Judicial Conduct states that it is inappropriata for a judga
to hold membership in any organization that invidiously
discriminates on the basis of race, sex or religion. Do you
currently belong, or have you belonged, to any organization
which discriminates — through either formal membership
requirements or the practical implementation of membership
policies? If so, list, with dates of membership. What have
you done to try to change these policies?
I have never belonged to any such organization.
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts? If
so, did it recommend your nomination? Please describe your
experience in the entire judicial selection process, from
beginning to end (including the circumstances which led to
your nomination and interviews in which you have
participated) .
There was a selection commission in Massachusetts, and it
did recommend me as a potential nominee. Following my
interview with the commission and its recommendation, I
was interviewed by Senator Edward Kennedy, who forwarded
my name to the President. Thereafter, I was inteirviewed
by a representative of the Justice Department, by a
special agent of the F.B.I. , and by a designee of the
American Bar Association.
4 . Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case, issue
or question? If so, please explain fully.
34
107
No.
5. Please discuss your views on the following criticism involving
"judicial activism."
The role of the Federal judiciary within the Federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that
alleges that the judicial branch has usurped many of the
prerogatives of other branches and levels of government.
Some of the characteristics of this "judicial activism" have
been said to include:
a. A tendency by the judiciary toward problem-solution
rather than grievance-resolution;
b. A tendency by the judiciary to employ the individual
plaintiff as a vehicle for the imposition of far-reaching
orders extending to broad classes of individuals;
c. A tendency by the judiciary to impose broad, affirmative
duties upon governments and society.
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing and
ripeness ; and
e. A tendency by the judiciary to impose itself upon other
institutions in the manner of an administrator with
continuing oversight responsibilities.
It is improper for a judge to disregard well
established boundaries on judicial power, embodied in
doctrines such as standing and ripeness. If we insist
that others respect the rules, we must follow them
ourselves.
It is equally true that a judge's focus must always
be on the case at hand. The couirts are not making stone
soup, with the litigant in the role of the worthless
stone, and the real ingredients — the meat of the matter
35
108
— the personal social concerns of the judge.
Moreover, a judge must always bear in mind our system
of constitutional government, which emphasizes the
coequal roles of the executive and legislative branches,
and the prerogatives of the states as well, and maintain
a scrupulous respect for them.
The standard instruction given to federal juries
at the conclusion of a jury trial states:
Both the parties and the public expect that you will
carefully and impartially consider all the evidence in
the case, follow the law as stated by the court and
render a just verdict, regardless of the consequences.
Although this mandate could be parsed endlessly —
the social consequence of a ruling, for example, is often
a legitimate consideration — it states concisely the
role of the court as well as the jury, both in finding
facts and in fashioning appropriate remedies when
necessary. The task is to consider the evidence
impartially, follow the law and do justice in the
particular case, neither manipulating the substance of
the pleadings, nor fleeing their implications.
In the beginning of the book of Deuteronomy, Moses,
the Lawgiver, describes the attributes of a good judge:
Hear, the causes of your brethren and judge
righteously between every man and his brother and the
stranger that is with him. Ye shall not respect persons
in judgment. But ye shall hear the small as well as the
great alike. Ye shall not be afraid of the face of any
man.
This advice — to address the cause, to be unbiased.
36
109
and to act without fear — timelessly expresses the
challenge facing the courts. If a judge concentrates on
the facts of the case, and addresses the issues raised
without prejudice or timidity, he or she will transcend
topical debates and gain the respect even of those who
may disagree with a particular decision.
37
no
Michael A. Ponsor
ATTACHMENT 1 - Speeches and Presentations
Panel Member: "Federal Court Judicial Forum '93." Boston, MA.
September 22, 1993. Sponsored by MCLE.
Presenter: "The Role of Rule 11 Sanctions." Spring seminar
sponsored by Massachusetts Defense Lawyers Association. Boston,
MA. May 14, 1993.
Presenter: "Settlement Conference Techniques and Alternative
Dispute Resolutions in Federal Courts." National Workshop for
District Judges I, New Orleans, LA. March 22 - 24, 1993.
Faculty: "How to Try a Discrimination Case to a Jury." Suffolk
University Law School, Boston, MA. February 26, 1993.
Presenter: "Seminar on New Local Rules." Springfield, MA.
Sponsored by Hampden County Bar Association. February 25, 199 3.
Presenter: "Seminar on New Local Rules." Worcester, MA.
Sponsored by the Boston Chapter of Federal Bar Association.
October 27, 1992.
Presenter: "Seminar on New Local Rules." Chicopee, MA. October
14, 1992. Sponsored by MCLE.
Presenter: "Discovery: Techniques for Expedited Resolution of
Discovery Disputes." Workshop for U.S. Magistrate Judges of the
4th, 5th, 11th and DC Circuits, St. Petersburg, Florida. September
14 - 16, 1992.
Presenter: "Discovery: Techniques for Expedited Resolution of
Discovery Disputes." Workshop for U. S. Magistrate Judges of the
1st, 2nd, 3rd, 6th and 7th Circuits, Philadelphia, PA. July 15 -
17, 1992.
Presenter; "Process Design and Format Issues in Settlement of
Civil Cases." Advanced Workshop on Settlement for U. S. Magistrate
Judges, Boston, MA. June 14 - 17, 1992.
Presenter: "Discovery: Techniques for Expedited Resolution of
Discovery Disputes." Workshop for Magistrate Judges of the 8th,
9th and 10th Circuits, Santa Fe, New Mexico. April 28, 1992.
Presenter: "Summary Judgment: An Overview of Summary Judgment."
Workshop for Magistrate Judges of the 8th, 9th and 10th Circuits,
Santa Fe, New Mexico. April 28, 1992.
Presenter: "Federal Court - Law and Practice," Springfield,
Massachusetts. January 16, 1992. Sponsored by Hampden County Bar
Association.
Ill
Presenter; "The Americans With Disabilities Act — A Judicial
Perspective, " Mercy Hospital, Springfield, Massachusetts. November
13, 1991. Sponsored by Greater Springfield Chamber of Commerce,
Workwise at Mercy Hospital, Employer's Association of Western Mass.
Presenter; "Critical Motions in the Federal Courts," Federal Court
Judicial Forvun '91, Boston, Massachusetts. October 24, 1991.
Sponsored by MCLE.
Presenter; "Attorney/ Client Privilege and Work Product Doctrine,"
Workshop for U.S. Magistrate Judges, 1st, 2nd, 3rd, 6th and 7th
Judicial Circuits, Warren, Vermont. August 7-9, 1991.
Faculty; Attorney General's Advocacy Institute, July 17-19, 1991
U.S. Department of Justice, Office of Legal Education, Washington,
D.C.
Presenter: "Attorney/Client Privilege and Work Product Doctrine,"
Workshop for U.S. Magistrate Judges, 4 th, 5th, 11th and D.C.
Judicial Circuits, Washington, D.C. July 9, 1991.
Presenter: "Case Management and Discovery Issues in Environmental
Litigation," Boston, Massachusetts, June 12, 1991. Sponsored by
Boston Bar Association.
Presenter: "Trial Practice & Procedure: Employment & Labor Law,"
Springfield, Massachusetts. October 26, 1990. Sponsored by
Massachusetts Academy of Trial Lawyers.
Presenter: "Federal Court Practice," October 3, 1990, Northampton,
Massachusetts. Sponsored by Hampshire County Bar Association.
Faculty; Trial Advocacy Workshop, September 21, 1990, Harvard Law
School, Cambridge, Massachusetts.
Presenter: "Civil Pre-trial Practice in U. S. District Court,"
February 22, 1990, Springfield, Massachusetts. Sponsored by
Hampden County Bar Association, Young Lawyer's Section.
Facultv; Trial Advocacy Workshop, January 22-26, 1990. Harvard
Law School, Cambridge, Massachusetts.
Faculty: Attorney General's Advocacy Institute, October 25-27,
1989, U.S. Department of Justice, Office of Legal Education,
Washington, D.C.
Presenter; "Abusive Discovery," July 12, 1989, Seminar for U. S.
Magistrates of the 1st, 2nd, 3rd, 4th & D.C. Circuits, Boston,
Massachusetts .
Presenter; "Federal District Court Practice, Social Security
Disability," May 22, 1989, Holy Cross College, Worcester,
Massachusetts. Sponsored by Disability Law Center.
112
Presenter: "Damages in Employment Cases," May 12, 1989, Fourth
Annual New England Employee Relations Conference, Boston,
Massachusetts. Sponsored by Massachusetts Bar Association and
Massachusetts Continuing Education.
Presenter; "Federal Practice and Procedure, A View from a Session
of the U. S. District Court," November 2, 1988, Springfield,
Massachusetts. Sponsored by Massachusetts Continuing Legal
Education.
Presenter: "Rule 11 and Discovery Sanctions," March 16, 1988,
Boston, Massachusetts. Sponsored by the Federal Bar Association,
Boston Chapter.
Presenter: "Representing Criminal Defendants in Federal Criminal
Court: Comparison with State Court Proceedings," March 24, 1988,
Boston, Massachusetts. Sponsored by Massachusetts Bar Association,
Criminal Justice Section.
Presenter: "Use of Sanctions in State and Federal Courts,"
May 30, 1987, Sturbridge, Massachusetts. Sponsored by
Massachusetts Bar Association.
Presenter: "Recent Developments in Massachusetts Federal Court
Practice," February 2, 1987, Chicopee, Massachusetts. Sponsored by
Massachusetts Bar Association.
Presenter: "Civil and Criminal Forfeiture," October 15, 1986,
Dixville Notch, New Hampshire, Magistrates' Session, First Circuit
Judicial Conference.
Presenter: "Insider's Guide to Federal District Court," April 16,
1986, Chicopee, Massachusetts. Sponsored by Massachusetts Bar
Association, Young Lawyers Division.
Presenter: "How to Put a Personal Injury Case Together," April 20,
1985, Springfield, Massachusetts. Sponsored by Massachusetts
Continuing Legal Education.
113
Senate Judiciary Committee Questionnaire
Judge Lesley Brooks WeU^
I. Biographical Information (Public)
1. Fu]l Name (include any former names used):
Lesley Brooks Wells
Born: Lesley Simpson Wells
Married: Lesley Simpson Brooks
2. Address: List current place of residence and office address(es):
Residence: Office:
1 6926 East Park Drive Court of Common Pleas
Cleveland, Ohio 44119 Cuyahoga County
Justice Center, 16-B
1200 Ontario Street
Cleveland. Ohio 44113
3. Date and place of birth:
October 6. 1937
Muskegon, Michigan
4. Marital Status (include maiden name of wife, or husband's name). List spouse's
occupation, employer's name and business address(es):
Divorced
5. Education: List each college and law school you have attended, including dates of
attendance, degrees received, and dates degrees were granted.
J.D.. cum laude. 1974 Cleveland State University, 1969 - 1970
Cleveland-Marshall College of Law 1 972 - 1 974
Cleveland, Ohio
B.A. Philosophy. Chatham College. 1955-1959
English. 1959 Pittsburgh. Pennsylvania
114
JUDGE LESLEY BROOKS WELLS
Pa g e 2
Education, continued:
Certificates
Graduate Study
Toward Masters Degree
College of Urban Affairs
Fellow
National Judicial College,
University of Nevada
Reno, Nevada
1983 - Present
Cleveland State University, 1979 - 1983
Cleveland, Ohio
Institute for Humanities and Medicine, 1991 - 1992
National Endowment for Humanities
Employment Record: List (by year) aD business or professional corporations,
companies, firms, or other enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were connected as an
officer, director, partner, proprietor, or employee since graduation from college.
1989-
- Present
Chatham College, Pittsburgh, Pennsylvania
Trustee
1989-
-1990
Urban League of Cleveland
Trustee
1988-
-1992
Miami University, Oxford, Ohio
Trustee
Officer
1986-
-1992
Rose Mary Center for Disabled Children
Trustee
1983-
- Present
Common Pleas Court, Cuyahoga County, Ohio
Judge
1980-
-1983
Schneider, Smellz, Huston & Ranney
(now Schneider, Smellz, Ranney & LaFond)
Cleveland, Ohio
Associate
Attorney
1980-
-1983
Cleveland State University
College of Urban Studies
Adjunct Asst,
Professor
1980-
-1981
Cleveland State University
Cleveland-Marshall College of Law
Adjunct
Instructor
1979-
-1980
ABAR III Litigation Center
Cleveland State University
Attorney/
Director
1975-
-1979
Brooks & Moffet, Attorneys at Law
Partner
1975
Lesley Brooks, Attorney at Law
Attorney
1970-
-1973
Design Comer
Clerk
115
JUDGE LESLEY BROOKS WELLS
Pages
6. Emplovment Record. conKmipri;
1970's WomenSpace Trustee
1970's Heights Community Congress Trustee
1970's Heights YMCA Trustee
1970's Cuyahoga Women's Political Caucus Trustee
1960 - 1961 Brown Jug Restaurant Waitress
7. Military ggrvicg; Have you had any military service? If so, give particulars
including the dates, branch of service, rank or rate, serial number and tvoe of
discharge received.
None
*• Honprs an<l Aw^rfls; List any scholarships, fellowships, honorary degrees, and
honorary society memberships that you believe would be of interest to the
Committee.
• Alumni Award for Civic Achievement, 1992
Cleveland State University
• Fellow, Institute for Humanities and Medicine, 1991-1992
National Endowment for Humanities
• Distinguished Alumna Award, Chatham College 1988
• Compassionate Judicial Insight Award, 1 go*
The Women's City Club
• Josephine Irwin Award for Outstanding Service, 1984
WomenSpace
• Merit Service Award. Bar Association of Greater Cleveland 1982
• Superior Judicial Award, Supreme Court of Ohio
• Who's Who in America and American Law
• Martindale-Hubbell: AV
• Book Award, Constitutional Law, Cleveland Marshall College of Law
• Alumnae Scholar, Chatham College
116
JUDGE LESLEY BROOKS WELLS
Pa g e 4
9. Bar Associations: List all bar associations, legal or judicial-related committees or
conferences of which you are or have been a member and give the titles and dates of
any offices which you have held in such groups.
• The American Inns of Court, No. 91
Harold H. Burton Chapter
Counselor
Master of the Bench
Membership Committee
• Ohio Women's Bar Association
Founding Member
Chair, Bar Liaison Committee
• Representative of the Supreme Court of Ohio:
Steering Committee of the Ohio Supreme Court/Ohio State
Bar Association, Joint Task Force on Gender Fairness
Chairperson, Gender Bias Education
National Judicial College, Biomedical Ethics and the Law (1990)
• Cleveland State University Law and Public Policy Program
External Advisory Board
• Common Pleas Court Committees
Civil Rules, Legislative, Social, Jail Facilities,
Civil Court, Criminal Court
• College of Urban Affairs, Cleveland State University
Visiting Committee
• Cleveland-Marshall College of Law, Cleveland State University
Visiting Committee
• Judicial Conference of the Eighth Judicial District, Life Member
• American Bar Association
National Conference of State Trial Judges
Ethics and Professional Responsibility Committee (1986)
AIDS Committee (1990)
• National Association of Women Judges
• Ohio State Bar Association
Eighth District, Nominating Committee (1989)
Board of Governors, Section on Women in the Profession (1993)
• Ohio Judicial Conference
Vice Chair, Civil Law and Procedure Committee (1993)
• Ohio Common Pleas Judges Association
• National Bar Association
1993 -Present
1990 -Present
1993-1993
1992 -Present
1992 -Present
1991 - 1993
1991-1993
1991-1993
1989 -Present
1988 -Present
1987-1993
1986 -Present
1986 -Present
1984 -Present
1983 -Present
1983 -Present
1983 -Present
1980
117
JUDGE LESLEY BROOKS WELLS
Page 5
1978-1983
1975 - Present
Bar Associations, continued:
• The Association of Trial Lawyers of America
• Cleveland Bar Association
Commission on Women and Law;
Vice Chair, Reorganization Committee;
Committee on Mentally Disabled; Bar Advocacy Project;
C.A.S.E. Program (Pro bono indigent representation)
• Cuyahoga County Bar Association
Long Range Planning Committee
Municipal Courts Committee
• National Association of Women Lawyers
• Cleveland Women Lawyers Association
• Cleveland-Marshall Law Alumni Association
Life Member
• Legal Aid Society of Cleveland
President (1979 -1981).
Treasurer; Executive Committee; Trustee; Audit Committee;
Chair, Nominating Committee; Personnel Committee
1974 -Present
1974-1983
1974-1983
1974 -Present
1967-1983
10. Other Memberships: List all organizations to which you belong that are active in
lobbying before public bodies. Please list all other organizations to which you
belong.
None of the organizations to which I belong really are active in lobbying except as the
college and university may be affiliated with educational groups which may lobby.
• Chatham College, Pittsburgh, PA
Board of Trustees
• Case Western Reserve University School of Medicine,
Center For Biomedical Ethics, Advisory Board
• Trinity Cathedral, Episcopal Diocese of Ohio
• The City Club, Cleveland
• The Club, Society Center, Cleveland
1989 -Present
1986 -Present
1993
1982 - Present
118
JUDGE LESLEY BROOKS WELLS Page 6
11. Court Admission: List all courts in which you have been admitted to practice, with
dates of admission and lapses if any such memberships lapsed. Please explain the
reason for any lapse of membership. Give the same information for administrative
bodies which require special admission to practice.
The Supreme Court of the United States 1989
State of Ohio 1975
U.S. District Court, Northern District of Ohio 1975
12. Published Writings: List the titles, publishers, and dates of books, articles, reports,
or other published material you have written or edited. Please supply one copy of all
published material not readily available to the Committee. Also, please supply a
copy of all speeches by you on issues involving constitutional law or legal policy. If
there were press reports about the speech, and they are readily available to you,
please supply them.
• " 'Wise Restraints Make People Free: The Bicentennial of the Bill of
Rights'," Cleveland Bar Journal, Jan. 1991, Vol. 62, No. 3, pg. 73 -74.
Exhibit for Question 12, Judiciary Committee.
• Editor and an author, ABAR ID Civil Rights Litigation Manual.
Federal and state civil rights remedies, federal procedure, discovery,
class actions, intervention, interlocutory appeals, burden of proof,
attorney fees, etc., 1980; 2nd Edition, 1981. 500 pgs. Exhibit for
Question 12, Judiciary Committee.
• Editor, Family Violence, Summary Report to the Governor, Task Force on Family
Violence, December 1986. Exhibit for Question 12, Judiciary Committee.
13. Health: What is the present state of your healtli?
Excellent
List the date of your last physical examination.
May 26, 1993
119
JUDGE LESLEY BROOKS WELLS
Page?
14. Judicial Office: State (chronologically) any judicial offices you have held, whether
such position was elected or appointed, and a description of the jurisdiction of each
such court.
Office Elected or Appointed
Term
Jurisdiction
Judge Elected 1988
1/89-
1/95
Constitutional court of
general original jurisdiction
Court of Common Pleas
Civil, at law and in equity
General Division
where sum or matter in
dispute exceeds $10,000;
appellate jurisdiction from
certain state and local
boards; criminal felony
jurisdiction.
Judge Appointed 1983
3/83-
■1/85
Divorce, legal separation,
annulment and child custod^
Elected 1984
1/85-
•1/87
Elected 1986
1/87-
•1/94
Court of Common Pleas
D.R. Division
15. Citations: If you are or have been a judge, provide:
(1) Citations for the ten (10) most significant opiru'ons you have written:
See Exhibit for Question 15 (J), Judiciary Committee.
Ohio V. Walker, Case No. 268354, November 21, 1991.
Powe V. Powe (1987) 38 Ohio Misc 2d 5.
Vrndavan v. Malcolm, et al. Case No. 193258, December 2, 1992.
Eaton, et al v. Aetna, et al. Case No. 189068, September 23, 1991.
Ohio V. Dellanno, Case No. 240217, March 7. 1990.
Thomas et al v. LTV Steel Co., Inc. et al, CV 167508, April 30th, 1992.
Duale, Adm., et al v. RTA, Case No. 134037/171715. January 3rd, 1992.
Cookston V. Conroy, Case No. 178792, August 15, 1990.
Spencer, et al v. McGill, et al, and Diversified Equities, et al. Case No. 195882,
May 4, 1992; Court of Appeals Case No. 64215, Affirmed per curiam, April 8, 1993.
Essef Corporation v. Mordecki Drori, Case No. 245551, October 6, 1993.
120
JUDGE LESLEY BROOKS WELLS Page 8
(2) A short summary of and citations for all appellate opinions where your decisions
were reversed or where your judgment was affirmed with significant criticism of
your substantive or procedural rulings:
Reversed: Seven (7) cases out of 147 appealed in eleven (11) years.
Exhibit for Question 15 (2)(a), Judiciary Committee
Ohio V. Walker, CA #62862 (CR-268354), October 28, 1993.
This was a death penalty aggravated murder and mass murder case with seven (7)
defendants, each entitled to separate trial and capital jury venire. Each man was charged
also with aggravated burglary, aggravated robbery, attempted murder and two (2) counts
of kidnapping. Only WaUcer retained counsel. The court appointed two lawyers for each
of the other six defendants. The Court of Appeals reversed Walker's case for ineffective
assistance of counsel "in failing to properly move for suppression of the evidence
obtained from defendant's apartraenL" para. Ill, pg. 21. Reversed and remanded.
State Automobile Mutual Insurance Co. v. Rainsberg
CA # 61875 (CP # 191732), February 4, 1993.
In an uninsured motorist declaratory judgment case. Slate Auto Insurance appealed the
trial court's summary judgment to an employee injured while operating a company van
insured by State Auto. The Court of Appeals decided the employee was not entitled to
recover damages. Reversed and remanded.
Hedges v. Gallagher, Sharp, Fulton and Norman et al,
CA#63129(CP# 186,401), October 15, 1992.
A woman sued in negligence for a hand injury from a conference room door at a law
furn where she was deposed. The trial court granted summary judgment for the firm but
the Court of Appeals found a jury issue in the employee's duties involuntarily opening
the door for the woman. Reversed and remanded.
Hosaflook v. Bar-linn, Inc.,
CA# 60382 (CP # 157366), June 4. 1992.
The trial court granted a directed verdict for the Bar in a negligence case for plaintiffs
failure to present medical proof on the issue of proximate cause. Hosaflook, a bar patron,
allegedly fell off a bar stool. No witness saw him fall. Bar employees refused to serve
him more alcohol but could find no one to drive him home. They locked him in his car
to "sleep it off," taking the keys inside for his safety. An hour later he was found lying
in the parking lot. There were no witnesses as to how he got out of his car or how he got
a laceration over his eye. Two appellate judges found sufficient evidence to connect his
skull fracture to a thump heard in the bar. One judge dissented due to the intervening fall
in the lot. Reversed and remanded.
Zaiewski v. Zaiewski
C A# 5 1 470 (CP 85 D- 1 59 1 54), January 22, 1 987.
A Polish woman, 57 and disabled, came to the U.S. to defend her 29 year old marriage
when she was sued for divorce by her husband who had come to the U.S. in 1970,
leaving her behind to raise their two sons. The trial was conducted with Polish
translation. Mrs. Zaiewski repeatedly tried to leave Poland to join her husband but was
unsuccessful because he had remained in the U.S. illegally. The husband sued for divorce
on the grounds the parties lived one year apart without cohabitation. The trial court
concluded the parties' separation was not voluntary, given the actions of the Polish
government. The Court of Appeals disagreed and ordered the divorce granted. Reversed.
Husband granted divorce.
121
JUDGE LESLEY BROOKS WELLS Page 9
(2) Citations, continued:
Turoczy v. Turoczy,
CA# 50729 (CP D- 126 135), June 12, 1986.
After a divorce incorporating a settlement, wife charged, and the court on hearing found,
that husband "had knowingly and intentionally transferred money and marital assets"
and that his concealment of assets was a fraud on the court The Court of Appeals held
that only fraud by an officer of the court could constitute fraud on the court and reversed
reinstating the original settlement.
Gramsz v. Gramsz,
CA# 49276/49280 (CP D-139721), June 27, 1985.
This case was heard by two trial referees. Several rounds of objections were filed
to the referees' reports. Several time extensions were granted. The trial court denied one
of the wife's motions for additional time to file objections. The Court of Appeals found
such denial was error, reversed and remanded.
Affirmed in part; reversed in part: Five (5) cases of 147 appealed.
Exhibit for Question 15 (2)(b), Judiciary Committee
Ohio V. Klanac
CA # 63647 (CP# 271062), September 7, 1993.
A jury convicted Klanac of aggravated murder and kidnapping. Klanac refused to
participate in his trial and was tried in absentia. The Court of Appeals found there was no
intent to hold the murder victim as a "shield or hostage" and reversed the kidnapping but
not the aggravated murder conviction.
Ohio V. Knowles,
CA# 61881 (CP# 259154), March 4, 1993.
The jury convicted Knowles of aggravated murder, murder, aggravated robbery and
having a weapon as a felon. The Court of Appeals ordered the murder and firearm
sentences merged.
Filmore et al v. Convention et al,
CA # 61269 (CP # 152102), October 29, 1992.
One hundred or so convention visitors claimed they became ill at a banquet and they
sued. The trial court granted all defendants summary judgment as plaintiffs failed to
provide evidence connecting defendants to the alleged il&ess. The Court of Appeals
upheld the trial court as to all but one defendant regarding whom the case was reversed
and remanded.
Ohio V. Hollins,
CA # 60148 (CP # 250867), April 23, 1992.
Hollins was found guilty of aggravated burglary, felonious assault and kidnapping plus
a prior conviction enhancement was established. The Court of Appeals vacated the
• felonious assault conviction, finding defendant should not have been convicted of both
assault and kidnapping as they sprang from the same conduct. Otherwise, the court
affurned.
122
JUDGE LESLEY BROOKS WELLS Page 10
(2) Citations, continued:
Merkel v. Merkel.
CA # 53561 (CP # 166520). May 12. 1988.
In a contested divorce, the court entered findings including escrowed ($10,000)
settlement funds of husband and his girlfriend as marital property and awarded them
equally to the parties after allocating one-half to the girlfriend who was entitled by prior
Federal Court order to share in the underlying settlement The Court of Appeals disagreed
with the finding and award; otherwise agreed. Reversed and remanded on property
division.
(3) Citations for significant opinjons on federal or state constitutional issues, together
with the citation to appellate court rulings on such opinions. If any of the opinions
listed were not officially reported, please provide copies of the opinions: .
1 am on a court of first impression and general jurisdiction. Such courts do not often
engender constitutional issues. However, they regularly apply constitutional principles
which I have been obliged to do orally, in uial, on hundreds of occasions. See Exhibit for
Question 15 (3), Judiciary Committee.
State v. Burrage, CR 268354, Appeal 63824, affirmed oral trial opinion,
October 18. 1993.
State V. Hall, CR 269798, Appeal 63771, affirmed oral trial opinion.
October 12. 1993.
State v. Fair, CR 279394. Appeal 64843. affirmed oral trial opinion.
June 17. 1993.
Willingham v. Cleveland et al, CV 134681, June 23. 1992.
Vodan v. Strongsville, CV 190982. June 23. 1992.
State v. King, CR 246047, Appeal 59536. affirmed oral trial opinion.
December 18, 1991.
State v. Richard, CR 214217, Appeal 60741. affirmed oral trial opinion,
November 25, 1991.
Silverberg v. MayHeld Heights. CV 194148. August 8. 1990.
State V. Dellanno, CR 240217. March 7. 1990.
Grafton v. Emplex Systems, Inc. CV 229243. November 16, 1989.
123
JUDGE LESLEY BROOKS WELLS Page 11
16. Public Office: State (chronologically) any public offices you have held, other than
judicial offices, including the terms of service and whether such positions were
elected or appointed. State (chronologically) any unsuccessful candidacies for
elective public office:
• Democratic Precinct Committee Person: 198 1 - 1983
Cleveland, Ward 11, Precinct I, Elected.
Cleveland Heights, Ward 2. Precinct F, Elected. 1965 - 1972
• Unsuccessful candidacy:
Justice, Ohio Supreme Court, 1992 Primary.
17. Legal Career:
a. Describe chronologically your law practice and experience after graduation from
law school including:
1. Whether you served as clerk to a judge, and if so, the name of the judge, the
court, and the dates of the period you were a clerk;
No
2. Whether you practiced alone, and if so, the addresses and dates;
Yes.
Lesley Brooks Wells, Esq. 1975
2385 Kenilworth Road
Cleveland Heights, Ohio 44106
3. The dates, names and addresses of law firms or office, companies or
governmental agencies with which you have been connected, and the
nature of your connection with each;
Judge 1983 -Present
Cuyahoga County Court of Common Pleas
Justice Center and Lakeside Court House
Cleveland, Ohio 44113
Attorney 1980-1983
Schneider, Smeltz, Huston & Ranney
Now: Schneider, Smeltz, Ranney and LaFond
1525 National City Bank Building
Cleveland, Ohio 44114
Attorney/Director 1 979 - 1 980
ABAR III Civil Rights Litigation Support Center
Cleveland-Marshall College of Law
1801 Euclid Avenue
Cleveland. Ohio 44115
(Serving 14 slates in 5 Federal Circuits)
124
JUDGE LESLEY BROOKS WELLS
Page 12
17. Legal Career, continued:
Adjunct Assistant Professor
Law and Urban Policy
College of Urban Affairs
Cleveland State University
1801 Euclid Avenue
Cleveland, Ohio 44115
Adjunct Instructor
Cleveland-Marshall College of Law
1801 Euclid Avenue
Cleveland. Ohio 44115
Attorney/Partner, Brooks & Moffet
Cedar and Fairmount
Cleveland, Ohio 44106
Sole Practitioner, Lesley Brooks, Esq.
2385 Kenilworth Road
Cleveland Heights, Ohio 44106
Federal Court Intern
Women's Law Fund
Cleveland, Ohio
Volunteer
Legal .\id Society of Cleveland
Me'^ntal Health Unit
Cleveland, Ohio
Lecturer
Cleveland State University
College of Law and
CoUese of Urban Affairs
Cleveland, Ohio 44115
1980-1983
1990 -Present
(pro bono)
1980-1981
1975-I97S
1975
1973-1974
1970-1971
1974 -Present
(pro bono)
1. What has been the general character of your law practice, dividing it into periods
with dates if its character has changed over the years?
2. Describe your typical former clients, and mention the areas, if any, in which you
have specialized.
Before I became a trial judge in 1983. I maintained a general civil practice including
civil rights, domestic relations, tort, business, commercial, tax, trusts, estates, consumer,
real estate, education, mental health, administrative and election law. 1 moved from a
neighborhood law office to the university, then to an established downtown law firm.
Specialization included two years concentration in federal practice and civil rights law.
In the neighborhood practice, my clients were predominantly individuals and families.
At Schneider, Smeltz, Huston & Ranney, small and medium businesses, health,
educational and charitable organizations were also my clients.
125
JUDGE LESLEY BROOKS WELLS Page 13
17. Legal Career, continued:
c 1. Did you appear in court frequently, occasionally, or not at all? If the frequency of
your visits varied, describe each such variance, giving dates.
I appeared in court occasionally as a lawyer.
2. What percentage of these appearances was in:
(a) federal courts;
34%
(b) state of courts of record;
66%
(c) other courts.
0
3. What percentage of your litigation was:
(a) civil;
100%
(b) criminal.
0
4. State the number of cases in courts of record you tried to verdict or judgment
(rather than settled), indicating whether you were sole counsel, chief counsel, or
associate counsel.
Of eighteen (18) cases, I tried eight (8) cases to judgment, four (4) as lead counsel,
three (3) as sole counsel, and one (1) as associate counsel. The rest settled during trial.
5. What percentage of these trials was:
(a) jury;
0
(b) non-jury.
100%
126
JUDGE LESLEY BROOKS WELLS Page 14
18. Litigation: Describe the ten (10) most sgniflcant litigated matters you personally
handled. Give the citations, if the cases were reported, and the docket number and
date if unreported. Give a capsule summary of the substance of each case. Identify
the party or parties whom you represented; describe in detail the nature of your
participation in the litigation and the final disposition of the case. Also state as to
each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or judges before whom the
case was litigated; and
(c) the individual name, addresses, and telephone numbers of co^ounsel and of
principal counsel for each of the other parties.
Sandra Lov et al v. Citv of Cleveland et al.
Citations if Reported: None
Docket Number: Case No. C74-253
Date: Filed March 25. 1974
Capsule Sumniar)': Title VII sex discrimination suit regarding threatened layoffs.
Parties Represented: Nine individual plaintiffs, female Cleveland Police officers.
Nature of My Participation: Under the super\ision of the Women's Law Fund, I
qualified as a Legal Intern under procedures of the U.S. District Court, N.D.OH. I argued
equitable relief in court before Judge Thomas Lambros and assisted in all aspects of
preparation of the case. The Cleveland PoUce Department had segregated all women
officers into the Women's Department. Through a series of ca.ses, women were being
brought onto basic patrol. At that point in the process, these women officers were
threatened with lay-off.
Final Disposition of the Case: The plaintiff won equitable relief.
(a) the date of representation:
January 1 ihrrugh March 29, 1974
(b) the name of the court:
U.S. District Court. Noihern District, Ohio
the name of the judge or judges before whom the case was litigated:
Hon. Thomas Lambros, Judge
127
JUDGE LESLEY BROOKS WELLS Page 15
18. Litigation, continued:
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties:
Lead Counsel Jane Picker, Esq. (21 6) 687-2528
for Plaintiffs: Cleveland Marshall College of Law
Cleveland Stale University
Cleveland. OH 44115
Counsel for Defendants: Malcolm Douglas, Esq. (216)664-2680
Cleveland Law Department
City Hall - Lakeside Avenue
Cleveland, OH 44114
In Re .Tason Brown
Citations if Reported: None
Docket Number: Case No. 82JUV 1125
Date: August 11, 1982; November 29, 1982
Capsule Summary: Dependency adjudication and reunification plan hearing regarding
young child of a deaf mother and deaf-mute father. Their older children had been
permanently removed from them, adopted out of state, whereabouts unknown, for
reasons these indigent parents did not know. We conducted the hearings with two kinds
of interpreters since the mother could use American sign language but the father could
only lip-read.
Parties Represented: Phyllis Brown, the mother I eventually arranged for the Legal
Aid Society, Ralph Rudd, to represent Jay Brown, the father.
Nature of My Participation: My clients had challenging communication barriers and
were terrified of the social service and legal systems to whom they had lost their older
children. Preparing them and the court for a hearing had uncommon aspects. They
could not use telephone, butTDY was arranged.
Final Disposition of the Case: The court found that the child suffered no physical or
psychological abuse or neglect and "that the parents are blameless." The Welfare
Department was "urged to use every method at their disposal to effectively communicate
with the parents."
(a) the date of representation:
In court August 11, 1982 and November 29, 1982
(b) the name of the court:
Court of Common Pleas, Juvenile Division, Lake County, Ohio
128
JUDGE LESLEY BROOKS WELLS Page 16
18. Litigation, continued:
the name of the judge or judges before whom the case was litigated:
Hon. Richard A. Hoose. Judge
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties:
Counsel for Jay Brown: Ralph Rudd, Esq. (814)231-8424
(now) 500 E. Marylyn, D-49
State CoUege, PA 16801
Guardian ad Litem: James Fairell, Esq. (216)352-0441
#H-301 New Market Hall
Painesville, OH 44077
Marvel Smith v. George H. Hardv
Citations if Reported: None
Docket Number: Case No. D65142, Vol. 897, Pg. 855-8.
Date: March 14, 1983
Capsule Summary: This post-decree support and visitation litigation was bitter and
complex, involving long distance visitation and college expenses for three children,
both of whose parents had remarried, relocated and assumed additional obligations.
Parties Represented: The out-of-state father, George H. Hardy
Nature of My Participation: Sole counsel
Final Disposition of the Case: After two days of trial, a tailor-made full settlement
was reached and ordered into effect.
(a) the date of representation:
In trial February 24 through February 25, 1983
(b) the name of the court:
Court of Common Pleas, Cuyahoga County, Domestic Relations Division
the name of the judge or judges before whom the case was litigated:
Hon. Gregory C. Fuss, Referee
129
JUDGE LESLEY BROOKS WELLS Page 17
18. Litigation, continued:
(c) the individual name, addresses, and telephone numbers of co-counsei and of
principal counsel for each of the other parties:
Counsel for Plaintiff: Larry S. Gordon Esq. (216) 781-5245
Maryel Smith Berkman, Gordon, Murray & Palda
The Illuminating Bldg.
Public Square
Cleveland. OH 44113
Edward T. O'Neill vs. David V. Raggone. CWRU and the Andrews Foundation
Citations if Reported: None
Docket Number: 82-041934-CV
Date: April, 1982
Capsule Summary: The plaintiff. Dean of the Library Science School at Case Western
Reserve University ("CWRU"), alleged that a conspiracy between the University
President, CWRU and the Andrews Foundation, had deprived him of his position.
Parties Represented: President David V. Raggone and CWRU.
Nature of My Participation: Associate counsel with Jim Huston as lead counsel.
Final Disposition of the Case: A settlement agreement was signed 12/27/82 between
Plaintiff. CWRU and Present Raggone; the case was dismissed with prejudice at
plaintiffs costs.
(a) the date of representation:
April through December of 1982
(b) the name of the court:
Court of Common Pleas, Cuyahoga County
the name of the judge or judges before whom the case was litigated:
Hon. Ann Dyke, Judge
(now, Court of Appeals, 8th Dist. OH)
130
JUDGE LESLEY BROOKS WELLS Page 18
18. Litigation, continued:
(c) the individual name, addresses, and telephone numbers of co^ounsel and of
principal counsel for each of the other parties:
Lead Counsel: James Huston. Esq. (401)847-2316
(now) 2 Summer Street
Newport, RI 02840
Counsel for Plaintiff: Todd M. Raskin, Esq. (216)248-7906
Mazanec, Raskin & Ryder Co. LPA
34305 Solon Road
Solon. OH 44139
Counsel for Defendant Charles F. Clarke Esq. (216)479-8551
The Andrews Foundation: Squire Sanders & Dempsey
4900 Society Center
Cleveland. OH 44114-1304
Stenger Realty Co. v. .lohn P. Cannell. Robert S. Wedwaldt. Susan L Wedwaldt
and Law rence S. Supelak
Citations if Reported: None
Docket Number: Case Nos. CV 20279 and CV 33399
Date: May 12. 1982
Capsule Summary: These consolidated cases arose out of divorce proceedings and
involved real estate foreclosure and specific performance actions between hostile
ex-spouses, a mortgagee bank and real estate brokers. After a jury was impaneled in the
consolidated cases, these cases were resolved by an in-court settlement.
Parties Represented: Defendant - Third Party Plaintiffs, Wedwaldts
Nature of My Participation: Lengthy negotiations with parties on the issues which led
to the specific performance action failed. As sole counsel for the Wedwaldts. who lived in
Florida. I prepared the case for uial and served as trial counsel for them.
Final Disposition of the Case: In court settlement of all issues, cases dismissed with
prejudice at plantiffs cost
(a) the date of representation:
November 20th. 1980. through May 12th. 1982
(b) the name of the court:
Court of Common Pleas. Cuyahoga County
131
JUDGE LESLEY BROOKS WELLS Page 19
18. Litigation, continued:
the name of the judge or judges before whom the case was litigated:
Hon. Burt Griffin, Judge
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties:
Counsel For Plaintiff: Michael Molnar, Esq. (2161)252-3502
4088 W. 229th St.
Fairview Park, OH 44126
Counsel For Defendant Richard Brown. Esq. (216)696-5200
Supelak: Roudebush, Brown & Ulrich
635 NCB Building
Cleveland. OH 441 14
Harvey M. Rodman v. Annette Rodman
Citations if Reported: None
Docket Number: Case No. DR 124439 and CA 45457
Date: Hearing April 15, 1982; Judgment, May 11, 1982
Capsule Summary: This was a bitterly contested post-divorce decree proceeding
involving fraud, misrepresentation, perjury, and support obligations, followed by an
appeal. The Plaintiff, an internationally-known scientist, through his counsel, stone-
walled and refused all normal cooperation throughout discovery. After judgment
following trial. Plaintiff appealed, to no avail.
Parties Represented: Defendant Annette Rodman
Nature of My Partidpation: I represented a divorced woman in efforts to enforce her
divorce decree and to modify some of its provisions. Eventually, after an uncommonly
hostile series of pretrial and trial hearings, the Court granted her relief.
Final Disposition of the Case: Judgment for Appellee Annette Rodman.
(a) the date of representation:
April 1981 through May of 1982
132
JUDGE LESLEY BROOKS WELLS Page 20
18. Litigation, continued:
(b) the name of the court:
Court of Common Pleas, Domestic Relations Division, Cuyahoga County and Court of
Appeals, Eighth Appellate District
the name of the judge or judges before whom the case was litigated:
Hon. Samuel Asad, Trial Referee; Hon. Herbert R. Whiting, Judge
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties:
Counsel For Plaintiff: George Braun, Esq.. deceased
Susan M. Corvo v. Cuvahoga County et al
Citations if Reported: None
Docket Number: Case No. C82-3679
Date: Filed December 22, 1982
Capsule Summary: The female Deputy Director of Cuyahoga County's equal
employment opportunity office was passed over for a promotion to Director of the county
equal employment opportunity office. No vacancy was posted. When a male was hired
for the position she filed a Title VII sex discrimination suit seeking injunctive and
declaratory relief, promotion, back pay, remedies for retaliation, fees and costs. Because
of her expertise, she participated actively in statistical research prior to and in preparation
for litigation.
Parties Represented: Plaintiff Susan M. Corvo
Nature of My Participation: Until I was appointed to the Common Pleas Court in
March, 1983, 1 handled all aspects of this case. We began with efforts to resolve the
case through informal procedures and negotiations; then filed suit when necessary.
Discovery and pre-trial proceedings went well and negotiations continued with lean
trial preparation on both sides, sparing unnecessary expense.
Final Disposition of the Case: The case was settled on September 6, 1983 by James I.
Huston, Esq. who succeeded me as counsel when I was appointed Common Pleas Judge.
Plaintiff received back pay, transfer to an agreed position and attorney's fees.
(a) the date of representation:
December 22, 1982 through March. 1983
(b) the name of the court:
U.S. District Court, Northern District of Ohio
133
JUDGE LESLEY BROOKS WELLS Page 21
18. Litigation, continued:
the name of the judge or judges before whom the case was litigated:
Hon. John Manos, Judge
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties:
Counsel For Defendant: Patrick J. Murphy, Esq. (21 6) 443-779 1
Asst. County Prosecutor
Justice Center
Cleveland, OH 44113
State ex rel Cleveland Heights Municipal Court v. Marjorie Wright. Mavor. et al
Citations if Reported: None
Docket Number: Case No. 76-1073, Supreme Court of Ohio
Date: Filed September 2 1 , 1 976
Capsule Summary: The original Action in Mandamus was filed in the Ohio Supreme
Court when the City of Cleveland Heights, through action of its Council, unilaterally
transferred to the Cleveland Heights Municipal Court, the Violations Bureau, without
employees and without operating funds. The Bureau had been operated by the City with
seven employees at a cost of half a million dollars per year. Simultaneously, the city
removed the police officer assigned as Court Bailiff. These actions, taken after a new
judge defeated her twenty-year predecessor, left the busiest municipal court in the State
(byYilings per judge) unable to meet payroll through the year.
Parties Represented: Cleveland Heights Municipal Court and Judge Sara Hunter,
Plaintiff-Realtors
Nature of My Participation: I was sole counsel to the Court originally as we attempted
to negotiate a resolution with the City to prevent a shutdown of the Court. 1 brought on
as co-counsel an experienced litigator and negotiator, Bemie Direnfeld, to assist with a
negotiated resolution. We made no progress and so filed an Action in Mandamus in the
Ohio Supreme Court as we continued negotiating. Some progress was made. This year
the Judge will retire after eighteen years of service.
Final Disposition of the Case: Dismissed.
(a) the date of representation:
Filed November 21. 1976
(b) the name of the court:
The Supreme Court of Ohio
134
JUDGE LESLEY BROOKS WELLS Page 22
18. Litigation, continued:
the name of the judge or judges before whom the case was litigated:
Justices of the Ohio Supreme Court
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties:
Co-Counsel: Bernard E>irenfeld. Esq.. deceased
Counsel for Defendants: Jules N. Koach. Esq. (216) 241-2500
Leader Building
Cleveland. OH 44114
For State of Ohio: William J. Brown, Esq. (216) 787-3030
Ohio Attorney General
Stale Office Tower
Cleveland. OH 44114
Arlene M. Berke. et al v. Sportsmen's Club. Inc. et al
Citations if Reported: None
Docket Number: Case No. 76 CI F1681; Ohio Civil Rights Commission
Complaint No. 2823
Date: Case filed May 12. 1976; Complaint filed February 17, 1987
Capsule Summary: Breach of contract and sex discrimination in public accommodations
suit by women who paid defendants for an advertised trip to the Bahamas for themselves
and their spouses. Three days before the scheduled flight, plaintiffs were notified they
could not participate because it was a "Stag Junket". Nothing in the newspaper ads had
mentioned exclusion of women or of married women.
Parties Represented: Plaintiffs Arlene M. Burke. Sally Roseman. and Judith Shamis.
Nature of My Participation: I was lead Counsel and tried with case with my partner.
Beverly Moft'et, Esq. as co-counsel. We also represented the plaintiffs in the Ohio Civil
Rights Commission proceedings where we obtained a Conciliation and Consent Order.
Final Disposition of the Case: Judgment for plaintiffs with compensatory and punitive
damages plus attorney fees; Conciliation Agreement and Consent Order in Plaintiff's
favor in Ohio Rights Commission action.
(a) the date of representation:
May of 1976 through March 30, 1977
135
JUDGE LESLEY BROOKS WELLS Page 23
18. LitigatiQni coiitinugd:
(b) the name of the court:
The Shaker Heights Municipal Court, Ohio, and the Ohio Civil Rights Commission
the name of the judge or judges before whom the case was litigated:
Hon. Manuel M. Rocker, Judge
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties:
Counsel for Defendant Leonard P. Gilbert, Esq. (no telephone number
1 366 Hanna Building currently listed)
Cleveland. OH 44115
Co-Counsel: Hon. Beverly Moffet, Chief Referee (216) 443-8836
One Lakeside Court House
Cleveland, OH 44113
Deane C. .Toines v. Benjamin F. Bailar. Postmaster General et al
Citations if Reported: None
Docket Number: Case No. C76-136
Date: Filed February 10, 1976
Capsule Summary: A fifty-eight year old female customer service representative with
eighteen years of service and outstanding evaluations sought promotion to a position
level held by few women in the U.S. Postal Service: Customer Service Representative,
Senior. A male who was promoted had rated lower on all announced criteria. USPS failed
to process plaintiffs administrative remedies. She brought suit for injunctive and
declaratory relief, promotion, back pay, relief from retaliation, fees and costs.
Parties Represented: Plaintiff Deane Joines
Nature of My Participation: As co-counsel with my partner, Beverly Moffet, Esq., I
was responsible for conducting hearings, depositions and trial. We both did research and
jointly prepared the case, each participating in phases of discovery and settlement
negotiations. Due to the vast amount of paperwork maintained by the USPS, discovery
in preparation for suit was complicated.
Final Disposition of the Case: Full settlement on September 20. 1977
(a) the date of representation:
Case filed February 10, 1976, representation through September 20, 1977
136
JUDGE LESLEY BROOKS WELLS Page 24
18. IJtigation. continued:
(b) the name of the court:
U.S. District Court, Northern District of Ohio
the name of the judge or judges before whom the case was litigated:
Hon. Frank J. Battisti, Judge
(c) the individual name, addresses, and telephone numbers of co-counsel and of
principal counsel for each of the other parties:
Counsel for Defendant: Richard Froelke. Esq. (216)886-3031
Regional Labor Counsel, USPS
433 Van Buren Street, Room 901
Chicago, IL 60699
Joseph A. Cipollone, Esq. (216) 522-4336
Assl. U.S. Attorney
400 U.S. Court House
Cleveland, OH 44114
19. Legal Activities: Describe the most significant legal activities you have pursued,
including significant litigation which didn't progress to trial or legal matters that
did not involve litigation. Describe the nature of your participation in this question,
please omit any information protected by the attorney-client privilege (unless the
privilege has been waived.)
As Attorney/Director of the ABAR in Civil Rights Litigation Support Center, with
staff 1 trained and provided federal litigation resources to lawyers in fourteen (14) states
and five (5) Federal Circuits.
When time permits, 1 lecture and teach law and urban policy as an adjunct assistant
professor, pro bono. In the College of Urban Studies, I bring law to graduate students
in economics, sociology, psychology, business, environmental science and urban
planning.
When I was in general civil practice, much of my work involved matters outside
litigation such as work for Judson Park Retirement Center, small business, tax and estate
planning matters. We represented plaintiffs and defendants.
137
JUDGE LESLEY BROOKS WELLS Page 25
Senate Judiciary Committee Questiomiaire
n. Financial Data and Conflict of Interest (Public)
List sources, amounts and dates of all anb'dpated receipts from deferred income
arrangements, stock, options, uncompleted contracts and other future benefits
which you expect to derive from previous business relationships, professional
services, f>''m memberships, former employers, clients and customers:
• PERS, Ohio public employee vested retirement benefits of $64,000: eligible to receive
account balance disbursements on resignation or retirement.
Please describe arrangements you have made to be compensated in the future for
any financial or business interest:
None
Explain how you will resolve any potential conflict-of-interest, including the
procedure you will follow in determining these areas of concern. Identify the
categories of litigation and financial arrangements that are likely to present
potential conflict-of-interest during your initial service in the position to which you
have been nominated.
I know of no present conflict situations. In my ten plus years as a state trial judge, staff
and 1 have scanned the docket regularly for potential conflicts. For example, for many
years no one from my former firm appeared before me and we continue to disclose the
prior association immediately to all parties. I have no stocks, investments or business
interests. Full disclosure, divestment, and recusal could be proper if conflict situations
occur. I follow the Code of Judicial conduct
Do you have any plans, commitments, or agreements to pursue outside employment,
with or without compensation, during your service with the court. If so, explain:
No
List sources and amounts of all income received during the calendar year preceding
your nomination and for the current calendar year, including all salaries, fees,
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items
exceeding $500 or more:
138
FINANCIAL DISCLOSURE REPORT
A-A^e Ai-
Raport R*qulrad by UM lUilca
RaCora Act of 1969, Pub. L. Vo.
101-194. Nov«Bb«r JO, 1989
(i U.S.C.A. Xpp. 6, SSlOl-1131
1. p«r»on Raportlng ILaai n«»», Jlrat. »ld<ll« Initial)
WELLS, LESLEY BROOKS
4. Tltia (Artlcla III Judgaa Indlcata actlva or
•aolor atatua; Maglatxata Judgaa indicata
fuil- or part-tlaa)
Nominee, Judge, U.S. District Court,
Northern District of Ohio
7. Cbaabara or OfClca Mdxaaa
Judge Lesley Brooks Wells
Justice Center, 16-B
1200 Ontario Street
Cleveland. Ohio 4A113
2. Court or Organization
Nominee, U.S. District Court,
Northern District of Ohio
3. Data of Raport
11-23-93
S. Raport Typa <chack approprlata typa)
X HOBlnatlon. Data 11-1 9-93
Initial Ajuiual Final
6. RaportlBg Parlod
1-1-92 to
10-31-93
8. On tba baala of tha InfomatloD contalnad lo tula R«port, It
la, lo my oplDloo. lo coapllaaca wltb appllcabla lava and
ragulatlona
Ravlawlog Officer Slgnatura
IMPORTANT NOTES: The instructions accompanying this form must be followed. Complete all parts,
checking the NONE box for each section where you have no reportable iorormatJon. Sign on last page.
I. POSITIONS. (Reporting individual only, see pp. 7-8 of Instructioos.)
POSITION NAME OF ORGANIZATION/ENTITY
NONE (No raportabla poaltlona)
Trustee Chatham College, Pittsburgh, P.4
Counselor, Harold Burton Chaster Anerican Inns of Court, No. 91
Trustee (until 2-92)
Rose Marv Center for Children
Trustee (until 2-29-92)
Miami University, Oxford, OH
II. AGREEMENTS. (Reporting indis-idual only, see p. 8-9 of Instruciiocs.)
DATE PARTIES AND TER.V1S
D
NONE [Ho reportable agreeoenta)
to be determined PERS, Public Employee Retirement System of Ohio, eligible to receive
account balance disbursement
III, NON-INVESTMENT INCOME. (Reponing individual and spouse; see pp. 9-12 of Insinictions.)
DATE SOURCE AND TYPE GROSS INCOME
(Honorana only)
NONE (Ho reportable non-lnveataeat Incooe)
1
1/1/92 - 12/31/92 Ohio: Judicial salary
\/l/92 - 12/31/92 Cuyahoga County, Ohio: Judicial salary
1/1/93 - 10/29/93 Ohio: Judicial salary
1/1/93 - 10/22/93 Cuyahoga County, Ohio: Judicial salary
(youn, not spouse's)
$ 72,651.5':.
- 13,407.98
5 60,481.66
5 12,352.12
$
139
FINANCIAL DISCLOSURE REPORT (cont'd)
»■•■ of Person fUporclng
WELLS, LESLEY BROOKS
DmXM of RapOTL
11-23-93
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
D
(Includes those to spouse and dependent children: ose the parentheticals *(S)* and '(DC)* to Indicate reportable
reimbursements and gifts received by spouse and dependent children, respectively. Sec pp.13-15 of Instmctioiu.)
SOURCE
NONE (No aucb raportablo
n7a
DESCRIPTION
or gifts}
V. OTHER GIFTS, (includes those to spouse and dependent children: use the parentheticab '(S)' and "(DC)' to
lepei
indicate other gifts received by~ spouse and dependent children, respectively. Sec pp.15-16 of Instnicttons.)
n
SOURCE
DESCRIPTION
VALUE
NONE
X/A
(No lucb raporxabla qttXM)
VI. LIABILITIES, (includes those of spouse and dependent chUdren; Indicate where applicable, person responsible
for liability by using the parenthetical "(S)" for separate liability of spouse, "(J)" for joint liability of reporting
individual ana spouse, and '(DC)' for liabUit\ of a dependent child. See pp.16-18 oflnstructioDS.)
H
CREDITOR
NONE (Ho raporxabl* llabllltloa)
DESCRIPTION
VALUE CODE*
• VU.DE CODES:
J - Sli.OOO or !■••
II • 9250,001 to SSOO.OOO
K - $13,001 to SSO.OOO L • $S0,O01 to $100,000 H • $100,001 to $390,000
o • SS0O,001 to SI, 000,000 P • Horo than $1,000,000
140
P^
*T
^i
FINANCIAL DISCLOSURE REPORT (cont'd)
Naa* oC ParaoD Raporcl&g
WELLS, LESLEY BROOKS
Dare of Raport
11-23-93
VII. INVESTMENTS and TRUSTS -- income, value, transactions, (includes those of spouse
and dependent children; see pp. 18-27 of Instructions.)
paacriptloQ oC A«s«t»
IndUiM, xtuir* •triiU<:«l>l«, o>™«r of
B.
lacona
durlOQ
rapoping
pariod
C.
Oroaa valoa
at end of
raportlng
parlod
0.
Traaaactlooa during raportlng parlod
ing Indlviaual cad tpouM, "(31 tor
••p«z>t< o«ii«r.lilp By •poii.«, '(DC)"
for owii«£»lUp oy a«pao<3«Dr child.
Plac* *(X)* mVfL •«cb u»«t.
•xaapc tna pTleLr.dlsclosur*.
(1)
Coda'
(»-B)
12)
(iT.
aiv.,
raat p£
<1)
Coda'
(J-P)
(2)
Valua
Nathod^
Coda-"
(O-V)
iyp. I.
11 not ttxttspt froB (il«clo»ur« 1
b4;;'uu.
maxgvr,
radwsp-
tlonT
iiia:
Hontii.
Day
(3)
Valoa^
coda'
(J-P)
Cain,
coda'
(»-8)
(It prlv»t«
tru) lection]
NONE (Ro nporubla
locoa*. aaaau, or
tranaact-lona 1
PERS of Ohio
None
L
T
None
2
3
4
5
6
7
a
9
10
11
12
13
14
IS
16
n
la
19
20
1 locon/Cala Co<l»ai l-Sl.OOO or l«»a B-Sl.OOl to J2,500 C-S2,501 to 5,000 [>-S5,001 to S15.000
tumm ml. Bl 4 D41 E-S14.001 to S50.000 F-$S0,001 to S'.OO.OOO C-S100,00'. to 5'.,0::.P00 9-Hora than 51.000.000
3 Valua Coa«a. J-Sl5,40l or laaa K-S15,001 to SSO.OOO L-S40,0(ll to SlilCOOO >f 5100,001 to 5250,000
(Saa Col. CI 4 031 11-5250.001 to 5500.000 05500,001 to 51^000,000 P-Mora t^an 51.000,000
3 Valoa Hatliod Codaat Q-Appralaal Jt«Coat (raal aatata oiUy) 3-Aaaaa«Bant T^Caah/MjLTtot
{8«a Col. C3) U-Book Vain* v-othar w«latlsatad
Pcu^..»*1
• FINANCIAL DISCLOSURE REPORT (cont'd)
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate pan of Re^)
NONE
IX. CERTIFICATION.
In comoliano: wih the provisions of 2S U.S.C. § 455 and of Adnsory Opinion No. 57 of the Advisory Committee on
Judicial Acii\'iues. and to the best ol my knowledge a; the lime after reasonable inquiry, 1 did not perform any adjudicatory
function in anv litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
had a finanaal interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I ccnih that all information given above (including information pertaining to my spouse and tninor or dependent children,
if anv) lb accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable suiutory provisions permitting non-disclosure.
I funher cenifv' that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U-S.CA. app. 7. § 501 et. sea., 5 U.S.C. § 7353 and Judicial Conference
regulations.
■o-Ai fTeils, Juage
Date
U-23-93
Signature
^Lesley Bro-ot^s
NOTE; ANY1NDIV©i^AL WHO KNOWINGLY AND WHfULLY FALSIFIES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CrVIL^V^tT CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, § 104, AND IS U.S.C § 1001.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to:
Judicial Ethics Comminee
Administrative Office of the
United Slates Couns
Washington. DC 20544
142
^4<, ZD
Judge Lesley Brooks Wells Financial Statement
Net Worth
October 31, 1993
Provide a complete, currenl financial net worth statement which itemizes in detail all assets
(including bank accounts, real estate, securities, trusts, investments, and other financial holdings)
all liabilities (including debts, mortgages, loans, and other financial obligations) of yourself, your
spouse, and other immediate members of your household.
ASSETS
LIABILITIES
Cash on hand and in banks
$2,500.00
Notes payable to banks - secured
$0 00
US Govern securities - add schedule
$0.00
Notes payable to banks - unsecured
$0.00
Listed secunues - add schedule
$0.00
Notes payable to relauves
SO 00
Unhsted secunues - add schedule
$0 00
Notes payable to others
$0.00
Accounts and notes receivable:
SO.OO
Accounts and bills due
$0.00
Due from relatives and freinds
Upaid income tax
$0 00
Due from others
Other unpaid lax and interest
$0.00
Doubtful (judgement)
(S.<i.0O0 0O)
Real estate mortgages payble
Real esute owned - add schedule*
$14.'i.(XX)0O
• -add schedule (Thud Federal S&L)
$103,000.00
Real esute mongaees receivable
SO 00
Chattel mortgages and other hens payable
Autos and otier personal property
ss.ooooo
Other Debts - itemize
Cash value - life insurance
SO.OO
Other assets - itemize
Star VISA
$5.000 00
Boats
S5.000.00
Household Eoods
$35.000 00
Jewelrv
$4,000.00
TOTAL LIABILITIES
NET WORTH
TOTAL LIABILITIES AND
NET WORTH
$108,000.00
Vested pension PERS
$64,000.00
S160,500 00
TOTAI. ASSETS
$268.500 00
S268.500.00
CONTINGENT LIABILITIES
GENERAL LNFORAIATION
.An endorser, comaker or guarantor
$0.00
Are any assets pledged'' (Add schedule)
NO
(Jn leases or contracts
SO.OO
Are you defendant in any suits or
Legal Claims
$0.00
leeal actions?
NO
Provision for Federal Income Ta.x
$0.00
Have you ever taken bankruptcy?
NO
Other special debt
SO.OO
•Residence: 16926 East Park Drive, Qeveland, OH 44119
143
JUDGE LESLEY BROOKS WELLS Page 31
6. Have you ever held a position or played a role in a political campaign?:
Yes.
If so, please identify the particulars of the campaign, including the candidate, dates
of the campaign, your title and responsibilities:
• Campaign Manager, Mary O. Boyle for State Representative, 1978
• Various campaigns in Ohio, 1974 - 1983
• Candidate: Judge, Court of Common Pleas. Cuyahoga County, elected 1984, 1986, 1988
• Justice, Ohio Supreme Court, unsuccessful candidate, 1992 Primary
144
JUDGE LESLEY BROOKS WELLS Page 32
Senate Judiciary Committee Questionnaire
III. General (Public)
1. An ethical consideration under the Canon 2 of the American Bar Association's Code
of Professional Responsibility calls for "every lawyer, regardless of professional
prominence or professional workload, to find some time to participate in serving the
disadvantaged." Describe what you have done to fulfill these responsibilities, listing
specific instances and the amount of time devoted to each.:
At present, I serve four hours every weekend on an anonymous mental health crisis
intervention hotline for the Free Medical Clinic. Occasionally I teach law and urban
policy, pro bono, as an adjunct assistant professor at Cleveland State University.
I served as an officer of the Cleveland Legal Aid Society from law school graduation
until I completed my service as President.
In 1981 - 82, as Vice Chair of the Reorganization Committee of the Cleveland Bar
Association, I was responsible with others for conceiving and implementing a
pro bono program, CASE, for participation by all Cleveland area attorneys. The Bar
Association's Statement of Commitment, which I drafted, is as follows:
"Affirming our profession's commitment to equal justice for all persons and the
individual responsibility of lawyers as officers of the Court, the Bar Association of
Greater Cleveland asks each lawyer to examine and act upon his or her individual
professional obligation to provide legal services to those unable to afford them.
Join with your fellow lawyers to ensure that no one, for lack of funds, is denied
right or justice."
For this work I received the Merit Service Award of the Cleveland Bar Association.
For three years, 1984-1987, 1 traveled throughout Ohio as Chair of the Governor's Task
Force on Family Violence. The Task Force focused on child abuse, elder abuse, and
domestic violence. We made fifty four (54) recommendations to the Governor,
Legislature, state and local agencies. Fifty three (53) of our recommendations were
implemented.
I have served the disadvantaged in numerous organizations. I served as Trustee of the
Urban League of Cleveland, 1989 - 1990 and of Rose Mary Center from 1986 - 1990.
Rose Mary Center is a residential treatment and education facility for children aged
four to sixteen who are dual-diagnosed with multiple physical and learning disabilities.
Home care is not available to these children.
As a member of Case Western Reserve University School of Medicine's Center for
Biomedical Ethics Advisory Board, 1986 - present, 1 serve those disadvantaged by
medical catastrophe or crisis. This is an outgrowth of prior volunteer work in inner
city emergency rooms.
145
JUDGE LESLEY BROOKS WELLS Page 33
1. Serving the disadvantaged, continued:
Mental health patients caught in the misdemeanor criminal justice system pose special
problems which I worked to resolve through the Federation for Community Planning and
the Cleveland Bar Association. I served on the Citizen's Advisory Board of the Cleveland
Psychiatric Institute. Through the Legal Aid Society, I served as a volunteer advocate
inside one of our state mental hospit^, Fairtiill Psychiatric Institute.
I have served as a board member of several organizations designed to address
disadvantages specific to women: Women's Equity Planning Project, WomenSpace,
United Way Task Force on Women. I was Chair of the Legal Caucus of the National
Women's Political Caucus as well as the state and local Women's caucuses.
2. The American Bar Association's Commentary to its Code of Judicial Conduct states
that it is inappropriate for a judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex or religion. Do you currently
belong, or have belonged to any organization wlJch discriminates - through either
formal or membership requirements or the pract.cal implementation of
membership policies? If so, list, with dates of membership. What you have one to
try to change these policies?:
Brownie and Girl Scouts in the 1940's.
Is there a selection commission in your jurisdiction to recommend candidates for
nomination to the federal courts?:
No
Please describe your experience in the entire judidal selection process, from
beginning to end (including the circumstance which led to your nomination and
interviews in which you participated):
Initially 1 applied by letter. Curriculum Vitae and a list of two dozen references; people
who know me well from diverse times and perspectives. Senator Metzenbaum and
Senator Glenn each interviewed me, separately, twice. I completed the comprehensive
judicial application provided for me by Senator Metzenbaum and furnished both Senate
offices with a full response. A team of four, two staff members from each Senator's
office, interviewed me on a wide range of legal and professional topics.
On May 7, 1993, the Senators recommended to President Clinton that he appoint me
to a vacancy on the Federal District Court, Northern District of Ohio.
The office of White House Counsel provided me forms, waivers and fingerprint charts
for information relevant to White House, Justice Department. ABA, FBf and Senate
review of my qualifications, background and experience. All requested information was
provided by me to the White House.
146
JUDGE LESLEY BROOKS WELLS Page 34
3. Judicial selection process, continued:
I was contacted and interviewed by representatives of the Justice Depanment, FBI
and ABA in Washington and Cleveland. Additional information was provided them as
requested.
On November 19. 1993 I was advised by Bernard Nussbaum, Esq., Counsel to The
President, that President Clinton had nominated me to be U.S. Judge, Northern District of
Ohio and that he had sent my name to the U.S. Senate for confirmation proceedings.
4. Has anyone involved in the process of selecting you as a judicial nonunee discussed
with you any specific case, legal issue or question in a manner that could be
reasonably interpreted as asking how you would rule on such case, issue or
question:
No
5. Please discuss your views on the following criticism involving "judicial activism:"
The role of the Federal judiciary within the Federal government, and with society
generally, has become the subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism that alleges that the
1 judicial branch has usurped many of the prerogatives of other branches and levels
of government.
Some of the characteristics of this "judicial activism" have been said to include:
a. A tendency by the judiciary toward problem-solution rather than grievance-
resolution:
b. A tendency by the judiciary to employ the individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to broad classes of individuals:
c A tendency by the judiciary to impose broad, affirmative duties upon governments
and society:
d. A tendency by the judiciary toward loosening jurisdictional requirements such as
standing and ripeness:
e. A tendency by the judiciary to impose itself upon other institutions in the manner of
an administrator with continuing oversight responsibilities:
Traditionally courts confine what they say to the facts before them. A judge is out of line
when she or he injects into a case a problem or issue which is unnecessary to the
decision.
It is said judges should not make law. The principle is sound but in reality judges
sometimes cannot avoid "making law." If a particular case raises an issue of
interpretation and there is no precedent to apply to the facts under nare decisis, then
whether the Court answers yea or nay to a question "makes law." Great restraint should
be exercised, but the case must be decided.
147
JUDGE LESLEY BROOKS WELLS Page 35
"Judicial activism", continued:
Judges dispose of cases; they are not equipped or staffed to administer institutions. Thus
a judge is singularly ill-fitted to exercise continuing oversight Having no staff, judges
must "act through surrogates. Where remedies are due, judges should craft them leanly and
narrowly to confine them to proper judicial limitations.
Any analysis of standing must be careful so as not to deny without good cause a
person's access to the courts. Docket considerations, however compelling, should
not in themselves obstruct legitimate access to the courts. As a doctrine limiting judicial
review, standing determines who can litigate under the Article HI cases and controversies
requirement of the U.S. Constitution. The ripeness doctrine requires injury in fact or
significant threat of imminent harm. Ripeness, like moomess, is involved when
determining whether an issue may be litigated.
148
JUDGE LESLEY BROOKS WELLS
Affidavit
I, A/T^^^y S^OK^ U/^J-LS . do swear that the information provided in
this statement is, to the best of my knowledge, true and accurate.
(DATE) '
(NAME)
"^M^^
(NOTARY)
149
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name! (include any former names used.)
Marjorie Osterlund Rendell (n6e Marjorie May Osterlund)
2. Address! List current place of residence and office address.
Home: 3425 Warden Drive
Philadelphia, PA 19129
Office: Duane, Morris & Heckscher
One Liberty Place, 42nd Floor
Philadelphia, PA 19103-7396
3. Date and place of birth:
12/20/47 - Wilmington, DE
4. Marital Status (include maiden name of wife, or husband's
name): List spouse's occupation, employer's name and
business addre8s(es).
Married: Hon. Edward G. Rendell
Mayor, City of Philadelphia
Room 215 - City Hall
Philadelphia, PA 19107
5. Education: List each college and law school you have
attended, including dates of attendance, degrees received,
and dates degrees were granted.
University of Pennsylvania
Attended 1965-1969; B.A. degree received May 1969
Georgetown University Law Center *
Attended 1970-1971 (no degree; transferred to Villanova upon
marriage)
Villanova School of Law
Attended 1971-1973; J.D. degree received May 1973
6. Employment Record: List (by year) all business or
professional corporations, companies, firms, or other
enterprises, partnerships, institutions and organizations,
nonprofit or otherwise, including firms, with which you were
connected as an officer, director, partner, proprietor, or
employee since graduation from college.
14497.1
- 1 -
150
Employment :
1973-1978
1972-pre8ent
University of Pennsylvania
Development Department; Assistant to
Director of Annual Giving
Duane, Morris & Heckscher
Slimmer 1972 - Summer law clerk
1972-1973 - part-time law clerk
1973-1981 - full time associate
1981-pre8ent - partner
Other (boards)
1973-1978
Philadelphia Bar Association
Board of Directors, Young Lawyers
Section
Late 1970s - Present
University of Pennsylvania
(various advisory boards)
197R - Present
Visiting Nurse Association
of Greater Philadelphia
Visiting Nurse Society
Late 198Qs - Present
East Falls Advisory Board of
Chestnut Hill National Bank
Pennsylvania's Ceunpaign for Choice
1Qq:> - Present
Academy of Vocal Arts ■»
Avenue of the Arts, Inc~.
Market Street East Improvement Association
Philadelphia Bar Foundation
Philadelphia Friends of Outward Bound
Military Service; Have you had any military service? If so,
give particulars, including the dates, branch of service,
rank or rate, aerial number and type of discharge received.
No.
Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that you
believe would be of interest to the Committee.
14497.1
- 2 -
151
Phi Beta Kappa at University of Pennsylvania.
Philadelphia College of Textile and Science
Doctor of Laws - Honorary Degree awarded in May 1992
9. Bar Aesociations ! List all bar associations, legal or
judicial-related committees or conferences of which you are
or have been a member and give the titles and dates of any
offices which you have held in such groups.
American Bar Association
Pennsylvania Bar Association
Philadelphia Bar Association
Board of Directors, Young Lawyers Section (1973-78)
American Bankruptcy Institute
Eastern District of Pennsylvania Bankruptcy Conference
Philadelphia Bar Foundation (Board member)
Alternative Dispute Resolution Committee
of the Eastern District Bankruptcy Conference
Mediation Division
10. Other Memberships; List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
Organizations active in lobbying: None.
Other Memberships :
Academy of Vocal Arts
Avenue of the Arts, Inc. (Vice-Chair)
Bala Golf Club
Chestnut Hill National Bank/East Falls Advisory
Board
Market Street East Improvement Association
Pennsylvania's Campaign for Choice
Philadelphia Bar Foundation
Philadelphia Friends of Outward Bound
Forum of Executive Women
International Women's Forum ^
University of Pennsylvania
Athletic Advisory Board (Associate Trustee)
Trustees ' Council of Penn Women
Women's Athletic Board
Vesper Club
Visiting Nurse Association of Greater Philadelphia
(Vice Chair of Board of Trustees)
Visiting Nurse Society (Board of Managers)
11. Court Admission: List all courts in which you have been
admitted to practical with dates of admission and lapses if
any such memberships lapsed. Please explain the reason for
any lapse of membership. Give the same information for
14497.1
- 3 -
152
administrative bodies which require special admission to
practice.
U.S. Court of Appeals for the Third Circuit (4/27/78)
U.S. District Court for the Eastern District
of Pennsylvania (3/18/75)
Supreme Court of Pennsylvania (11/15/73)
12. Published Writings! List the titles, publishers, and dates
of books, articles, reports, or other published material you
have written or edited. Please supply one copy of all
published material not readily available to the Committee.
Also, please supply a copy of all speeches by you on issues
involving constitutional law or legal policy. If there were
press reports about the speech, and they are readily
available to you, please supply them.
Publications:
Contributing author of seminar materials published in
connection with annual seminar presentations; drafted
sections on Secured Creditor Claims and Adequate Protection
in all editions. The most recent editions are:
Developments in Reorganization and Commercial Finance Law —
1991 and 1992 (Tenth Annual Seminar) (378 pps.)
Duane, Morris & Heckscher
Reorganization and Finance Section
Copyright 1992 Duane, Morris & Heckscher
Developments in Reorganization and Commercial Finance Law —
1990 and 1991 (Ninth Annual Seminar) (305 pps.)
Duane, Morris & Heckscher
Reorganization and Finance Section
Copyright 1991 Duane, Morris & Heckscher
Developments in Bankruptcy Reorganization and Finance:
(A 1990 Annual) (289 pps.)
Duane, Morris & Heckscher
Reorganization and Finance Section ^
Copyright 1990 Aspen Publishers, Inc. *
1989
I am also the author of unpublished materials incorporated
into approximately twenty presentations given at seminars in
which I participated over the past several years on various
bankruptcy, creditors rights and real estate issues. These
seminars included an annual seminar, "Developments in
Reorganization and Commercial Finance Law, " presented every
year since 1982 by the Reorganization and Finance Section of
Duane, Morris & Heckscher in several cities, including
Philadelphia, Wilmington, Boston, and New York, to public
audiences comprised primarily of clients and commercial
lenders.
- 4 -
153
13. Health; what is the present state of your health? List the
date of your last physical examination.
Excellent. Most recent physical examination: April 1992.
14. ffudicial Office: State (chronologically) any judicial
offices you have held, whether such position was elected or
appointed, and a description of the jurisdiction of each
such court.
None.
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you have
written; (2) a short summary of and citations for all
appellate opinions where your decisions were reversed or
where your judgment was affirmed with significant criticism
of your substantive or procedural rulings; and (3) citations
for significant opinions on federal or state constitutional
issues, together with the citation to appellate court
rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions .
Not applicable.
16. PnhTlc Office; State (chronologically) any public offices
you have held, other than judicial offices, including the
terms of service and whether such positions were elected or
appointed. State (chronologically) any unsuccessful
candidacies for elective public office.
Committeewoman for the Republican Party,
30th Ward, 20th Division from 1972-1976.
17. T.egal Career;
a. Describe chronologically your law practice and %
experience after graduation from^law school including;
1. whether you served as clerk to a judge, and if so,
the name of the judge, the court, and the dates of
the period you were a clerk;
Not applicable.
2. whether you practiced alone, and if so, the
addresses and dates;
Not applicable.
3. the dates, names and addresses of law firms or
offices, companies or governmental agencies with
14497.1
- 5 -
154
which you have been connected, and the nature of
your connection with each.
1972-pre8ent Duane, Morris & Heckscher
Summer 1972 - Summer law clerk
1972-1973 - part-time law clerk
1973-1981 - full time associate
1981-present - partner
1. What has been the general character of your law
practice, dividing it into periods with dates if
its character has changed over the years?
My practice has always focused on business and
commercial law, commencing with general corporate,
banking and securities work from 1973 to 1975, and
bankruptcy and reorganization and finance
specialty from 1975 to the present. My practice
has focused on the debtor-creditor relationship,
in and out of bankruptcy proceedings, involving
extensive negotiation and varying amounts of
litigation over the years. In the late 19708 and
mid-19808, I was involved in commercial collection
litigation and extensive workout negotiation in
bankruptcy proceedings of debtor clients as well
as creditor clients in and out of bankruptcy
proceedings . The amount in controversy was
usually in the range of $2-10 million. Since the
mid-1980s, my work has also included many larger,
more complex matters, involving primarily
negotiation of amounts due and owing to clients in
the multi-million dollar range, with emphasis on
negotiation of complex issues and less active
litigation. Many of my more recent cases have
either been resolved out of court or through out
of court negotiations in an otherwise consensual
bankruptcy proceeding. Much of my time has been
spent in drafting of agreements and documents/
including pleadings, for such workouts and '
bankruptcy proceedings. I hBve also been engaged
in loan restructures and documentation of loans
and other financial agreements in similar workout
or problem loan situations.
2. Describe your typical former clients and mention
the areas, if any/ in which you have specialized.
My typical clients over the years have been banks
and insurance companies, unsecured creditors and
creditors' committees, as well as debtors in
workouts and bankruptcy proceedings. I would
estimate that 80% of my time has been spent
representing secured creditors. I have
specialized in issues relating to the rights of
- 6 -
155
secured creditors, including but not limited to
issues of perfection, lender liability, and
fraudulent conveyances. I have also tried many
relief from stay motions and complaints to
conclusion of behalf of secured creditors.
c. 1. Did you appear in court frequently, occasionally,
or not at all? If the frequency of your
appearances in court varied, describe each such
variance, giving dates.
In examining my practice since 1988, I find that
the number of court appearances has changed
radically in 1992 and 1993. My husband became
Mayor of Philadelphia in January of 1992, and I
have delegated many of the court appearances to
others; also, during 1992, my primary focus was on
two major cases, both of which involved out of
court restructurings of amounts in excess of
$100 million of indebtedness; in these cases we
represented, in one case, the bank group, and in
the other, the subordinated debenture group.
Also, during this time period, my department of
the firm (the Reorganization and Finance Section)
has delegated much of the commercial litigation to
a special group of attorneys in our Litigation
Department which routinely does this work with and
for our section's attorneys. During the prior
four years, namely, from 1988 through 1991, I
appeared regularly in court in any given year on
matters in which we represented the major secured
creditor of a company in chapter 11. There were
probably five to ten such cases in any given year.
Also during this time period, I represented the
trustee in a chapter 11 proceeding, and appeared
regularly in at least two complex chapter 11
proceedings in which we represented different
classes of indebtedness. I believe that dUring
1988 through 1991 I appeared in court anywhere
from three to eight days per month.
Court appearances were more frequent during the
previous time, namely, the time period from 1980
through 1988. More of the cases which I handled
involved individual secured creditor rights,
rather than complex cases, and matters such as the
right of the secured creditor to take back the
collateral pursuant to a hearing for relief from
the stay were tried to conclusion frequently. I
appeared in court very regularly, perhaps as many
as two to three days per week.
- 7 -
156
What percentage of these appearances was in:
(a) federal courts;
Most appearances were in federal courts
(95-100%)
(b) state courts of record;
Seldom (0-5%); appeared only in connection
with execution on or enforcement of
judgments, or opening of judgment
proceedings .
(c) other courts.
0%
What percentage of your litigation was:
(a) civil;
100%
(b) criminal
0%
State the number of cases in courts of record you
tried to verdict or judgment (rather than
settled), indicating whether you were sole
counsel, chief counsel or associate counsel.
My experience has been primarily in the bankruptcy
courts in which a chapter 11 case is pending.
Many contested matters and adversary proceedings
are brought before the court by way of complaint
or motion, which are heard by the court, non-jury,
following the Federal Rules of Civil Procedure
(made applicable by the Federal Rules of
Bankruptcy Procedure) as wej.1 as the Federal Rules
of Evidence, usually in hearings lasting from one
to three days. It is difficult to state "cases"
that have been "tried to verdict or judgment"
because, in each instance, the matters involved
hearings on fraudulent conveyances, relief from
stay, preference actions, motions to dismiss, and
the like. Many of these were tried to conclusion,
but not all led to the end of the case or total
resolution of a matter: I have handled my own
cases and except in a few instances in which I was
assisted by an associate, have been sole and chief
counsel in matters I have handled. I have
appeared and litigated in over 35 bankruptcy
matters .
14497.1
- 8 -
157
5. What percentage of these trials was:
(a) jury.
0%
(b) non-jury.
100%
18. Litigation: Describe the ten most significant litigated
matters which you personally handled. Give the citations,
if the cases were reported, and the docket number and date
if unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe In detail the nature of your
participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the judge or
judges before whom the case was litigated; and
(c) The individual names, addresses, and telephone numbers
of co-counsel and of principal counsel for each of the
other parties.
Please see Exhibit A attached hereto.
19. Legal Activities: Describe the most significant legal
activities you have pursued, including significant
litigation which did not progress to trial or legal matters
that did not involve litigation. Describe the nature of
your participation in this question, please omit any
information protected by the attorney-client privilege
(unless the privilege has been waivedX.
I have been involved in many significant legal activities
related to my practice area as well as the practice of law
in general. I have been an active participant in seminars
focusing on various areas of bankruptcy and creditors rights
law, including real estate, leveraged buyouts, preferences,
foreclosure strategies, and the impact of bankruptcy issues
on state trial proceedings. I speak annually at the Temple
Law School Forxim, addressing students on such issues as the
nature of the practice of bankruptcy and the role that debt
plays in our society.
U497.1
- 9 -
158
I am also a regular speaker at our annual bankruptcy
department seminars which showcase developments in this area
of the law.
I am an active member of the Eastern District of
Pennsylvania Bankruptcy Conference, formed five years ago to
foster education, communication and relationrhips among
bankruptcy lawyers in the area We now have over
450 members, and sponsor dinners semi-annually and a two-day
educational retreat each year. I am a regular participant
and usually a facilitator at the educational programs. My
partner, David Sykes, is currently the chairman of the
conference .
I have recently served on a committee to explore and
implement alternative dispute resolution by means of
mediation in our bankruptcy court system. I have served as
a mediator in our district court mediation program and, in
response to a request from our bankruptcy judges, am helping
to formulate a local bankruptcy rule to implement such a
program in the bankruptcy court suited to the specific needs
and unique aspects of the system.
My bar-related activities include current involvement in the
Philadelphia Bar Foundation, a fundraising arm of the
Philadelphia Bar Association which raises money for grants
to law-related projects throughout the city. I have been
active in soliciting funds for these projects and
considering programs worthy of support.
As a younger lawyer I was an advocate for disadvantaged
children under a progreun sponsored by the Support Center for
Child Advocates, a program which provides attorneys to
represent the interests of abused children at the charging
stage and to interface with social workers and relatives. I
was also elected to the board of the Toung Lawyers Section
of the Philadelphia Bar Association and served for several
years on various committees, one of which explored and
proposed a revamping of sheriff's sale procedures for'
abandoned housing. ;
159
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts and dates of all anticipated receipts
from deferred income arrangements, stock, options,
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements you
have made to be compensated in the future for any financial
or business interest.
Upon termination of my relationship with Duane, Morris &
Heckscher, my capital, in the approximate amount of $56,000,
will be returned to me, and I will receive a termination
payment of approximately my average compensation for the
past two years, to be paid upon termination over up to two
years, at my option. I intend to move my HRIO and 401K
funds to an independent IRA.
Also, I anticipate receiving income from the rental of a
vacation home that my husband and I own, which averages
$12,000-$14,000 (gross) per year.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the categories
of litigation and financial arrangements that are likely to
present potential conf licts-of-interest during your initial
service in the position to which you have been nominated.
I intend to disqualify myself from hearing matters
involving: the City of Philadelphia; Meridian Bancorp.,
Inc.; the Visiting Nurse Association of Greater
Philadelphia; the University of Pennsylvania; and entities
in which I have a "financial interest" pursuant to 28 U.S.C.
S 455. I will follow the dictates of 28 U.S.C. S 455 as to
disqualification due to a conflict regarding any oth6r
matters or interest. ,.
I will need to establish a policy relating to disclosure and
waiver, or disqualification, as to persons or entities
appearing before me who have been contributors to my
husband's political campaigns; beyond a certain dollar
amount or degree of support, I would probably disqualify
myself, but do not know of many persons or entities expected
to appear before me who would fall into such a category.
I will try to strike a balance between the ethical aspects
of the situation and the practicalities of the
administration of justice. In all instances I will follow
the Canons of Judicial Ethics.
14497.1
- 11 -
160
3. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No.
4. List sources and amounts of all income received during the
calendar year preceding your nomination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoraria, and
o^her items exceeding $500 or more (if you prefer to do so,
copies of the financial disclosure report, required by the
Ethics in Government Act of 1978, may be substituted here.)
Please see copy of Form AO-10 attached hereto.
5 . Please complete the attached financial net worth statement
in detail (Add schedules as called for).
Attached.
6. Have you ever held a position or played a role in a
political campaign? if so, please identify the particulars
of the campaign, including the candidate, dates of the
campaign, your title and responsibilities.
I have played an active, but not official, role in various
campaigns of my husband, Edward G. Rendell. He served as
District Attorney for the City of Philadelphia for eight
years commencing in 1978. He ran unsuccessfully in the
primary for Governor of Pennsylvania in the spring of 1986,
and unsuccessfully in the primary for Mayor of Philadelphia
in the spring of 1987. He was successful as a candidate for
Mayor of Philadelphia in the primary held in May of 1991, as
well as in the fall general election in November of 1991,
and is currently Mayor of Philadelphia for the term
commencing January 1992 to December 31, 1995.
14497.1
161
III. GENERAL (PUBLIC)
An ethical consideration under Canon 2 of the American Bar
Association Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
My pro bono and community service activities have been in
the form of my active service on the boards of various
organizations. My longest community service association has
been with the Visiting Nurse Association of Greater
Philadelphia (VNA) , having served on its board and headed
many of its committees over the past fifteen years. The VNA
is the only homebound home care entity which provides
services to the indigent in the Philadelphia area, and I
have been personally involved in fundraising and other
efforts for the poor and indigent of Philadelphia in this
way. The organization prides itself on its mission of
providing care to those unable to pay, the quality of its
caring, which is exceptional.
I have also been actively involved on various boards at the
University of Pennsylvania, with a focus on helping today's
student through mentoring and other counselling programs.
Many female students I have counselled are on scholarship
and need the active support and encouragement of a role
model to help them pursue their education, and I feel I have
been a constructive influence for many such women.
Recently, I have become a leading contributor of time and
energy to the civic project known as Avenue of the Arts,
Inc., which is a non-profit corporation dedicated to
developing a cultural district in center city Philadelphia.
I am the vice chairman of the board of directors and 'play a
leadership role in this entity, which %will enhance economic
development that will improve economic conditions in the
adjacent neighborhood and the city at large.
At a time when our public schools are tempted to curtail
arts programs due to fiscal constraints, many of our
citizens are looking to Avenue of the Arts to help instill
an appreciation for the arts in our children through many
educational programs to be sponsored there and a new High
School for the Creative and Performing Arts to be
constructed. This project will have an impact on our city
for years to come.
The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a judge
- 13 -
162
to hold membership in any organization that invidiously
discriminates on the basis of race, sex, or religion. Do
you currently belong, or have you belonged, to any
organization which discriminates — through either formal
membership requirements or the practical implementation of
membership policies? If so, list, with dates of membership,
what you have done to try to change these policies?
I do not belong to any organization that discriminates on
the basis of race, sex or religion in its admission
policies. The golf club to which I belong does impose some
distinctions between men and women in policies regarding
usage of club facilities.
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination? Please describe
your experience in the entire judicial selection process,
from beginning to and (including the circumstances which led
to your nomination and interviews in which you
participated) .
The selection commission established in my jurisdiction by
Senator Harris Wofford recommended me, along with four other
candidates, for nomination as a result of a formal selection
process. In early June, I contacted the Chairman of the
Commission, President Patricia McPherson of Bryn Mawr
College, to obtain the application form to be completed for
submission in order to be considered for this position. I
submitted a complete application and was contacted for an
interview, which consisted of a one-half hour interview with
two members of the Commission. Thereafter, I was contacted
for a further interview before the entire Commission, which
took place on July 6, 1993. Thereafter, I believe that the
Commission provided Senator Wofford with my name and the
names of other individuals from whom he would select a
nominee. On July 27, 1993, Senator Wofford recommended me to
the President for this judicial position. Investigations
conducted by the Federal Bureau of Investigation and \he
American Bar Association have been con\pleted, and I was
interviewed by attorneys at the Justice Department in
Washington in early November.
4. Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case, legal
issue or question in a manner that could reasonably be
interpreted as asking how you would rule on such case,
issue, or question? If so, please explain fully.
No.
5. Please discuss your views on the following criticism
involving "Judicial activism."
- 14 -
163
The role of the federal judiciary within the federal
government, and within society generally, has become the
subject of increasing controversy in recent years. It has
become the target of both popular and academic criticism
that alleges that the judicial branch has usurped many of
the prerogatives of other branches and levels of government.
The role of the federal judiciary is limited by the
Constitution, and the separation of powers which is its
hallmark, to the interpretation and enforcement of existing
laws. In the process of euch interpretation and
enforcement, the role of the federal district courts is
further limited by the nature of their jurisdiction, which
is limited jurisdiction under Article III of the
Constitution, and established precedent, which is
controlling. The district court judge is charged with the
resolution of distinct matters at issue before him or her in
this context. The judge must resolve only those issues
before him or her and not seek to solve problems or craft
solutions broader than necessary to the resolution of the
instant matter. The expansion of jurisdictional limits or
modification of principles of jurisprudence is a matter for
the legislature, not the judiciary, to undertake.
164
Exhibit Jk
Signif leant: Lltlqatad Mattare
My trial experience has been gained primarily, although not
exclusively, in the bankruptcy coiurt system, in which the "case"
is a reorganization proceeding, and adversary matters, sometimes
involving actual trials, are heard by the court. X have
litigated in the bankruptcy courts locally and throughout the
country in at least 35 cases.. The following are examples from
ten cases in which matters redsed by notion or con^laint were
litigated by me, except as noted, as sole trial counsel, several
of which resulted in reported decisions.
1. Bartholomew, et al. v. Wori-h«iiiy»r»n Mational Bank, at al.
[United States District Court for the Eastern District of
Pennsylvania, Civil Action No. 64-1940 (1975); United States
Court of Appeals for the Third Circuit, No. 77-2217 (1978)]
Summary
Suit by purchaser of vacation lot against banks who financed
purchase, on basis of Truth-in-Lending, Interstate Land Sales
Full Disclosure Act, and usury law violations.
One of the defendants, Americcm Bank and Trust Co. of Pa.
(now Meridian Bank).
iBBuea Litigated
Whether: (i) financing of the purchase of a vacation lot
was the loan or use of money for purposes of usury law
violations; (ii) banks that finance a purchase of a lot are held
liable for violations of the Interstate LanH Sales Full
Disclosure Act; and (iii) Truth in Lending Act violations could
be asserted after one year from the date of the land sale
contract. While I did not argue the matter before the District
Court or the Third Circuit, I was involved in the legal strategy
and was responsible, with counsel for Merchants National Bank,
for the pleadings in and briefing of the matter, especially on
appeal to the Third Circuit (584 F.2d 1288).
(continued)
14500.1 Litigated Matters - page 1
165
Significance of Issues/mtimate Disposition
The court decided in the negative as to all of the issues
referred to above, issues of great significance to banks and
other entities that finance such purchases, granting summary
judgment in favor of our client.
Judge
Hon. John P. Fullam, Judge, United States District Court for
the Eastern District of Pennsylvania.
Hon. James Hunter, III, Judge, authored opinion for United
States Court of Appeals for the Third Circuit.
other Counflcl
Counsel for defendant Merchants Bank and Trust Co. of Pa.:
John E. Flaherty, Jr., Esquire
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-2128
Counsel for plaintiffs:
Edward C. Toole, Jr., Esquire
(215) 241-1814
Michael J. Glasheen, Esquire
(215) 241-1821
Clark, Ladner, Fortenbaugh & Young
2005 Market Street
2l6t Floor
Philadelphia, PA 19103
145.00.1
Litigated Matters - page 2
166
2. In re Winslow Center ABBOciatcs
[United States Bankruptcy Court for the Eastern District of
Pennsylvania, Bky. No. 82-00020-G; Adv. No. 82-2662]
Chapter 11 proceeding of New Jersey partnership which owned
a shopping center.
Client
Provident Mutual Life Insurance Coii^>any, the mortgagee.
iBBuas I.it:igatad
(1) Relief from Stay requested based upon erosion of
secured creditor's equity cushion. 32 B.R. 685 (Bankr. E.D. Pa.
1983); relief granted.
(2) Rights of secured creditor to post-petition rentals
recognized under title theory. 50 B.R. 679 (Bankr. E.D. Pa. 1985).
(3) Objected to debtor's attorney's request for fees from
assets subject to mortgagee's lien. 57 B.R. 317 (Bankr. E.D. Pa.
1986); payment of fees denied.
Significance of IssugB/Oltimate DiBposition
Decision relating to the extent of the interest of the
mortgagee in post-petition rents as cash collateral was one of the
first such decisions decided under New Jersey law; this issue
thereafter became the subject of much litigation in our district and
elsewhere, commencing with the case of in re T.M. Carlton House
Partners. Ltd. ^ 91 B.R. 349 (Bankr. E.D. Pa. 1988), and addressed
most recently by U.S. District Court Judge Bartle in In re SeSide
Co.. Ltd. f 152 B.R. 878 (E.D. Pa. 1993). Also, the decision has
often been cited for its limitation of the ability of debtor to
charge fees against secured creditors' collateral to only^those fees
that benefitted secured creditor.
Our client was granted relief from the stay and proceeded to
foreclose on its collateral. Also, it was able to collect and apply
rents from the shopping center tenants to reduce the debt due to it.
Judge
Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy
Court for the Eastern District of Pennsylvania.
(continued)
14S00.1 Litigated Hatters - page 3
167
Of-hftr Couneel
Counsel for Committee of Equity Holders:
Leonard Goldberger, Esquire
Wolf, Block, Schorr & Solis-Cohen
Packard Building, 12th Floor
15th and Chffstnut Streets
Philadelphia, PA 19102-2678
(215) 977-2578
Debtor's Counsel:
David Fishbone, Esquire
Ciardi, Fishbone & DiDonato, PC
1900 Spruce Street
Philadelphia, PA 19103
(215) 546-4370
Counsel for Trustee:
Robert H. Levin, Esquire
Adelman Lavine Gold S Levin, PC
1900 Two Penn Center Plaza
Philadelphia, PA 19102-1799
(215) 568-7515
uspo.i
Litigated Matters - page 4
168
3. In re Reading Tiibe Corporation and Laeh Holdinqs Limited ^
DebtorB . [United States Bankruptcy Court for the Eastern
District of Pennsylvania, Case Nob. 87-00429-T and 87-00430-T. ]
Summary
Chapter 11 proceeding of copper tube manufacturer.
ClifiJXt
Meridian Bank, primary secured creditor, as well as the
government agencies participating in its loan.
iBBueB Litigated
(1) Challenged propriety of debtor-in-possession financing where
debtor failed to prove that it had searched for available financing
elsewhere; financing denied. 72 B.R. 329 (Bankr. E.D. Pa. 1987).
(2) Initiated and litigated Motion for Appointment of a Trustee
based upon allegations of fraud, mismanagement and self-dealing of
company's shareholders. Discovery ruling reported at 73 B.R. 99
(Bankr. E.D. Pa. 1987).
Significance of Issues/Ultijnate Disposition
The Motion for Appointment of a Trustee became a trial of issues
of alleged fraud and gross mismanagement conducted on an expedited
basis, with discovery encompassing 20 to 25 days over 3 months and the
trial itself lasting for several days during a 3-week period in May
1987. Extensive expert testimony as to financial dealings was
presented. The matter was settled before conclusion of the trial,
paving the way for the plan of reorganization with favorable treatment
of our client's claims, and release of all claims against our client,
including lender liability.
Judge
Hon. Thomas M. Twardowski, Bankruptcy Judge, United States
Bankruptcy Court for the Eastern District of Pennsylvania.
Other Counsel
Debtor's Litigation Counsel:
Louis Lustenberger, Esquire
Donovan & Leisure
30 Rockefeller Plaza
New York, NY 10112
(212) 632-3290
(continued)
1450P.1 Litigated Matters - page 5
169
Debtor's Bankruptcy Counsel:
Bruce Frankel, Esquire
Angel & Frankel
366 Iladison Avenue
New York, NT 1017-3191
(212) 286-0100
For Creditors Committee:
Charles Phillips, Esquire
Baskin Leisawitz Heller Abramowitch, P.C.
2201 Ridgewood Road, Suite 400
Wyomissing, PA 19610
(215) 372-8427
For Union/Employees' Committee:
John Gough, Esquire
Montgomery, McCracken, Walker & Rhoads
Three Parkway, 20th Floor
Philadelphia, PA 19102
(215) 655-7200
14500.1
Litigated Matters - page 6
170
4. In re DninHnlrw V. clvitella [United States Bankruptcy Court for
the Eastern District of Pennsylvania, Case No. 80-01083K]
SiiimmiT-y
Chapter 11 proceeding of apartment complex.
The debtor.
iBBuaa Litiqatad
Rebuffed constant attempts of three secured creditors to
cause case to be dismissed, converted, or to file their ovm plan
of reorganization.
Successfully reorganized debtor and distributed one hundred
cents on the dollar to unsecured creditors in Plan of
Reorganization.
Resulted in frequently-cited reported decision holding that
Disclosure Statement must be based on statements of fact, not
opinion. 14 B.R. 151 (Bankr. E.D. Pa. 1981); reconsideration
denied, 15 B.R. 206 (Bankr. E.D. Pa. 1981).
Significance of iBSues/Ultimate Disposition
The client was a widow whose son was managing the complex.
The personal, business, legal and strategic aspects were very
challenging. The secured creditors were extremely aggressive and
constantly commencing litigation to try to take over the
property. We were able to prevail over them and confirm a plan
providing 100% payment for creditors — a rare result in a
bankruptcy case.
Judge
Hon. William King, Judge, United States Bankruptcy Court for
the Eastern District of Pennsylvania.
(continued)
14580.1 Litigated Matters - page 7
171
Qt.P"^ Counsel
(Each of the following represented a secured creditor)
Rush T. Haines, Esquire
Drinker, Biddle & Reath
1100 PNB Building
Broad and Chestnut Streets
Philadelphia, PA 19107
(215) 988-2944
Neal D. Colton, Esquire
Dechert, Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
(215) 994-2515
Matthew Siembieda, Esquire
(215) 569-5609
Samuel Becker, Esquire
(215) 569-5527
Blank, Rome, Comisky & McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
Litigated Matters - page 8
172
5. In re Ram Manufacturing Inc. and Ampro Corp.. Debtors
[United States Bankruptcy Court for the Eastern District of
Pennsylvania, Bky. Nos. 83-00101-G and 83-00102-G; Adv. No.
83-0039-G)
Summary
Chapter 11 proceeding of electronics manufacturer.
Client
Meridian Bank, secured creditor.
iBBues Litigated
Whether Meridian was entitled to relief from stay due to
lack of adequate protection. 32 B.R. 960 (Bankr. E.D. Pa. 1983);
reconsideration denied 36 B.R. 822 (Bankr. E.D. Pa. 1984).
Significance of Is sues/Ultimate DispoBition
The bankruptcy court found that accounts receivable arising
from pending lawsuits were too uncertain to be considered for
purposes of adequate protection, and proper valuation standard for
company which had ceased operations was distress value. Given the
lack of adequate protection and lack of debtor's equity in the
property, relief from the stay was granted our client so it could
proceed to foreclose on the property.
JUSigfi
Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy
Court for the Eastern District of Pennsylvania.
Other CouhBel
For debtor:
Thomas B. Rutter, Esquire
Rutter, Solomon & DiPiero
The Curtis Center, Suite 750 »
Philadelphia, PA 19106 \
(215) 925-9200
For trustee:
Donald M. Collins, Esquire
Stradley, Ronon, Stevens & Young
2600 One Commerce Square
Philadelphia, PA 19103-7098
(215) 564-8080
Litigated Matters - page 9
I
173
6. Tn re Center for the Blind [United States Bankruptcy Court for
the Eastern District of Pennsylvania, Case No. 79-8ie-EG]
Chapter 11 proceeding of non-profit corporation serving the
blind.
Client
The debtor.
TamiftB T.ifci9at«»rf/Siffnifieance of iBBUes/UltlinBte DiBDQBJtiQD
This case was not adversarial, but was unique in that we
confirmed a plan providing for the transfer and continuation of
the Center's endowment, subject to Orphan's Court approval (which
was obtained) intact for the benefit of the intended
beneficiaries, i.e., the blind, and payment to unsecured
creditors of approximately fifteen cents on the dollar.
Judge
Hon. Emil F. Goldhaber, Chief Judge, United States
Bankruptcy Court for the Eastern District of Pennsylvania.
other Counsel
For Rudolphy Residence:
Christopher H. Gadsden, Esquire
Drinker, Biddle & Reath
1100 PNB Building
Broad and Chestnut Streets
Philadelphia, PA 19107
(215) 988-2780
For Attorney General, Commonwealth of Pennsylvania:
James Sutton, Esquire
(Current address unknown)
For Unsecured Creditors:
Lawrence Lichtenstein, Esquire
Buchanan Ingersoll
Professional Corporation
1200 Two Logan Square
18th S. Arch Streets
Philadelphia, PA 19103-6933
(215) 665-3923
14500.1
Litigated Matters - page 10
174
7. In re Philadelphia Athletic Club [United States Bankruptcy
Court for the Eastern District of Pennsylvania, Bky. No.
80-02028-G; Adv. No. 82-0146-G)
Summary
Chapter 11 proceeding of athletic club facility in Center
City Philadelphia.
Clifint
Trustees of Central States, Southeast and Southwest Areas
Pension Funds, Victor Palmieri & Co. as Investment Manager,
primary secured creditor.
iBBuas Litigated
Initiated a motion for relief from the stay and entered into
a stipulation providing for automatic relief from stay upon the
happening of certain events. Upon defaults by the debtor, relief
from stay was to be automatically enforceable. Debtor failed to
make a timely payment and contested such immediate relief in an
injunction proceeding. 20 B.R. 322 (Bankr. E.D. Pa. 1982).
Significance of iBsues/Ultimate Disposition
The court gave effect to the terms of the Stipulation,
giving automatic relief to our client, which then foreclosed on
this major real estate asset at a sheriff's sale.
The court's opinion is often cited as authority for
enforcement of court-approved stipulations, especially relating
to relief from stay for secured creditors otherwise forestalled
from executing on property which constitutes their collateral.
The case was perhaps the first of a long line of cases involving
single-asset debtors where the courts have been viewing the
rights of single-asset real estate debtors somewhat more
summarily than those of other complex businesses in need of
reorganization.
Judge
Hon. Emil F. Goldhaber, Chief Judge, United States
Bankruptcy Court for the Eastern District of Pennsylvania.
(continued)
Litigated Matters - page 11
I
175
other Counsel
Debtor's Counsel;
Pace Reich, Esquire
Clark, Ladner, Fortenbaugh & Young
2005 Market Street, 2lBt Floor
Philadelphia, PA 190.03
(215) 241-1330
Counsel for Partners of Ovmer of Debtor:
Stuart H. Savett, Esquire
Savett, Frutkin, Podell & Ryan, PC
320 Walnut Street, Suite 508
Philadelphia, PA 19106
(215) 923-5400
Counsel for Trustee:
Melvin Lashner, Esquire
Lashner & Lashner
1604 Locust Street
Second Floor
Philadelphia, PA 19103
(215) 732-9229
14SP0.1
Litigated Matters - page 12
176
8. In re Bates Energy Corp. [United States Bankruptcy Court for
the Northern District of Ohio, Case No. B-86-476-Y]
Siimmiiry
Objection of creditor client, the Bethlehem Corporation, to
the proposed sale of assets of Bates Energy Corp. in Chapter 11
proceedings
Bethlehem Corporation, a major unsecured creditor.
iBBuee Litigated
Client believed that the proposed sale of assets was for the
benefit of insiders of the company. I traveled to Youngstown,
Ohio in June of 1986 on a few days' notice and put on a case
during four days of hearings to try to show insider dealings and
preferences, sham transactions, undercapitalization, and
detriment to creditors .
Significttnce of iBgueg/Ultimate DiBpoeitipa
The court approved the sale over objection. Court approval
of a sale of assets of a debtor company presents a difficult
predicament for a bankruptcy judge where the court is to examine
with scrutiny transactions involving insiders, but the company
has little prospect for reorganization without such a sale.
While the case itself may not appear to be significant, what was
significant at the time, and since that time, was the fact that I
put on a substantial case to prove insider dealing on a few days '
notice, without the luxury of depositions, discovery and the
like. Notwithstanding the fact that I was not successful, I
believe I raised serious doubts about the sale that should have
been sufficient tc warrant its not being approved.
Judge
Hon. William T. Bodoh, Judge, United States Bankruptcy Court
for the Northern District of Ohio.
(continued)
J4S00.1 Litigated Matters - page 13
177
rH-her Counael
Our local counsel:
Jeffrey Baddeley, Esquire
Squire, Sanders & Denipsey
1800 Huntington Building
Cleveland, OH 44115
(216) 687-8500
Debtor's Counsel:
David J. Naftzinger, Esquire
Thompson, Hine & Flory
1100 National City Bank Building
Cleveland, OH 44114
(216) 566-5500
Counsel for Mellon Bank (secured creditor)
Eric A. Schaffer, Esquire
Reed, Smith, Shaw s> McClay
James H. Reed Building
Mellon Square
435 Sixth Avenue
Pittsburgh, PA 15219
(412) 288-3131
14500.1
Litigated Matters - page 14
178
9. In re Mart:a Group [United States Bankruptcy Court for the
Eastern District of Pennsylvania, Bky. No. 83-01276-G; Adv.
No. 83-1145-G]
Chapter 11 debtor of appliance wholesale cooperative.
Cliimt
Emerson Quiet Kool Corporation, seller/consignor of
appliances to the debtor.
laauea Lifciqated
The validity of consignment and/or secured creditor
relationship as between Emerson Quiet Kool and the debtor.
Siynlfieanc* of iBaueB/Dltimate Disposition
The court was called on to determine who should suffer the
consequences of an improperly filed financing statement: the
debtor, who contributed to the improper filing by dealing with
Emerson under a prior name, or the secured creditor, who should
have made certain that its interest could be determined from a
search of relevant records. The court determined that the onus
should be imposed on the secured creditor, who had the burden of
showing that the discrepancy in debtor's name was not "seriously
misleading." Also, consigned goods delivered after notice of
filed financing statements are not property of the estate.
33 B.R. 634 (Bankr. E.D. Pa. 1983)
Judge
Hon. Emil F. Goldhaber, Chief Judge, United States
Bankruptcy Court for the Eastern District of Pennsylvania.
Other Counsel
%
Counsel for Debtor:
Pace Reich, Esquire
Clark, Ladner, Fortenbaugh & Young
2005 Market Street, 21st Floor
Philadelphia, PA 19103
(215) 241-1330
(continued)
Litigated Matters - page 15
179
Counsel for Creditors Committee:
David S. Hope, Esquire
Stradley, Ronon, Stevens & Young
2600 One Conmierce Square
Philadelphia, PA 19103-7098
(215) 564-8168
Counsel for other secured creditor:
Howard T. Classman, Esquire
Blank, Rome, Comisky & McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
(215) 569-5568
Msoo.i Litigated Matters - page 16
180
10. Schweibert v. Schweibert [Philadelphia Court of Common
Pleas, September Term, 1975; No. 4769; Civil Action -
Equity)
HiiimniiT-y
Suit in the Court of Common Pleas of Philadelphia County by
a wife against her psychiatrist husband for enforcement of the
terms of a separation agreement.
Defendant husband.
iBSues Litigated
The matter was ultimately settled, but not without
substantial discovery and negotiation involving the interplay of
equity, domestic relations, and the meaning of legal terms and
conditions in accordance with their intent.
Significance of IsBues/Ultimate Disposition
The legal issues were less significant than the learning
experience for me, personally, to be dealing with a dispute of
this nature in a commercial context. The matter was ultimately
satisfactorily resolved by negotiation of a definitive agreement
that had the clarity lacking in the originally negotiated
separation agreement. The significance to the client was
probably much greater than the significance of any other matter I
have worked on.
Judge
Hon. Calvin Wilson, Judge of the Court of Common Pleas for
the County of Philadelphia.
other CouHBel
Jerome Charen, Esquire
(current address unknown)
revised in LAH 12/3/93 1:45 pm
PORHElt RAKE! WTSt (MDOl.iai.CTJOOaniF.Sn rtMMJ. 10/03/t]
14S00.1 Litigated Matters - page 17
181
FINANCIAL DISCLOSURE REPORT JS5r>;.r:.«^»riMj
■•part »ilii<r»^ ^ tte BxUea
'rtora kct of >••>, »uti. L. la.
II v.i.c^. Avp. t, iiioi-ua)
I Itnrrm tUtx i
tint. BlMU lalUal)
FEWPgLL. M»riorl« O.
1. GDOt
anlt*a states Olstriet Court
for to* Bastarn Siatrict
of Pannaylvanla
a. ana mt Mfact
11/29/93
4. UUa (ArUcl* III ]«<fM Imtiamxm mnxi* or
>[odoa,^UnrteS"statas Siatrict
Court for tna Eaatarn Sistric
of Pannsylvania
ct
X _^w.,^ 11/19/93
IBltlal __ ■Mill __ WtaH
1/1/92 - 11/1/9;
'iRfana, Morria i'Siackacbar
Ob* Llbarty Plaea, 42nd rioor
thiladalphia, fA 19103-7396
X; It
thtTtONEfcs te aadi atetiaa «hHc TOO tete ao'
*D parti,
itpartablflBfcfattan. j^ jw Jon ii^ge.
I. POSITIONS. (Rqxntiat indivldnil oii))r, tee pp. 7^8 of Inttniaions.)
yOSrnON NAME OF ORGANIZATlON/ENTrrV
n
NONE llo rapotUUa foaltloaa)
PLEASE SEE ATTACHMENT
II. AGREEMENTS. (Reporting indnidua] only, tee p. 8-9 of Instructions.)
J2ME PARTIES AND TERMS
n
NONE (Bo svportabl* affraaaasta)
9/1/93 (c) On or about September 1, 1993: Oral agreement
between Duane, Morris t HecKachar and Marjorie 0.
Rendell, whereby Duane, Morris s Heckscher
III h.ie^k.t it.n.i^r\^ii^k.rr t^tf\r\il^ ICOntinuea on ATTACHHENT)
ill. NON-INVESTMENT INCOME. (Rqmning indiviifua] and tponse; iee pp. 9-U of Instructions.)
n
DATE
(Honoruia only)
SOURCE AND TYPE
GROSS INCOME
(youis, not spouse's)
NONE (la wportatla aaa-lnaataan Smom)
VI
-12/31/92
1/1
-10/31/93
1
4
Duane, Morris fi Beckscher
Partner (gross) compensation
Duane, Morris S Heckscher
Partner (gross) compensation
City of Philadelphia
Compensation to Mayor (S)
(continued on ATTACHMENT]
$
179,662.00
$
133,333.30
s
s
182
FINANCIAL DISOjOSURE REPORT (cosi'd)
RENDELL, Marjori* O.
Bau of tmpon
11/29/93
IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment
~ ' ' " ! ID toeoat nd iiiiintiBt ckDteae ate Ibe avtotbctkili *(B)' and *(PC)* to tndlcMt iMiauite
I ad (Uli wtBtttit tj Wfaam nZ dcpcodcot chUdio. Wi|»iiLII»«<>. Bm ppJ3-U €< ImOiiakM.)
SfiEBa PESomnoN
V. OTI-IER GIFTS. (iDcluda tbow to ipoose and depeodcnt cfalldnn; om the puatiMtleals '(S)* and '(DC)* to
■ "■ 1 depo * -. . _
Indicate other fUU rccclvtd by ipoiue aod dependeol children, rwpectlvely. See pp.l5-li of Instmcttoot.)
n
SOURCE
NONE (SO aaok nperuUa (Itu)
DESCRIPTION
VALUE
NOT APPLICABLE
Vi. LIABILITiES. (Indada tboie of ipooie and dependent efaOdrenj indicate when applicable, penoo rcxpoosttiic
for Uibllity by nslns the parenthetical *(S)' for (epante Uabllltv of noDse, *(J)* for Joint lUblUty of icportlns
Individual and tpousc, anT'(DC)' for Uablllty of a dependent chUd. ^ pp.l£-18 of^lnftnictloot.)
n
CREDITOR
NONE (00 1
DESCRgnON
VALUE CODE'
Meridian Bank (j)
Meridian Bank (J)
Cape Eavlngc Bank (J)
(refinancea by
"Home Savinga Bank
in May 1992)
Line of
Crediti
personal
Line ot
debt
Credit,
campaign
One-hall
of Bort
gage
on
vacatior
used as
duplex
vacatior
(one unit
homei one
ranted to othera)
9 -• Iii9,«w ar iMi . I • us.aoi «■ «M,eoo <t • «te,ooi v> tieo.eoo » • «ioo,ooi «■ <iM,afO
a • «i5o,ooi to •sao.soo « - asae.oo> <a ti>ooo,eoo t • nan tau (1,000,000 <',v''
183
FINANCIAL DISCLOSURE REPORT (cont'd)
wa of r«r«OA teporclsg
KENDELL, Marjorie 0.
Oat* or toport
11/29/93
VIL INVESTMENTTS and TRUSTS - income, value, transactions.
and liifwirlrnt chfldra; nc pp. U-rr af luniiiutom.)
■RT
*os.
au,-fc
«rasi valva
St aoA ef
TUT
-nr
i .C f * , >^ i j?kV *
i:
If stfV aBuayx Ina «iael««u«
■UT"
TO
'^l
I — I w<yB '*!,'Trr
teine* Caor^a Co. KD BSG
!)ONE
Kk BFA KTFM GTD KTG CTF
rWMA
40NE
MA HFA HSG Sr B
Ereq 2000 10.4% TECA
10NE
Aaericon Tel S Tel
div.
General Electric
div.
Public Service Enterprise
div.
KP TaxExempt Honey Market
div.
DMC T/F Income Trust PA
(J)
div.
buy
.1/17 '92
Unit Trust Muni Inv Tr
Fd PA ser 14 (J)
int
°Muni Inv Tr
iB£_
KP Tax Exempt Money
Market (J)
div
Huffy Corp (dc)
div
Meridian Baneorp (dc^
div
Toys R Ue (dc)
div
KP Govt Income Fd (dc)
div
YV T^y^ty Tnr-nwg Fd (de)
div
XP Cash Reserve Money
M)ct (dc)
div
CTF Acrl Tsy Sr W
11/15/98 (dc)
NONE
E I Dupont (dc)
div
Hulfy Corp. (dc)
div
(see a tach id con
inua:ion page)
laaomt/Otla CMMi a^l.aoo at laai
V«lu«^dut
■ J-SU.OOC ai i««a
T-a>B.ooi tc iieo.aeo
e^2,«oi to s<ooo D'H.mi to ris.ooo
Hcooa to iieo.aeo »*s>eo.eoi to ii.doo.doo »-Mor« th«e ii.ooo.oec
<««. eel, ei «B3t ii^MO.Bai to tioe.oeo o-iioo.eoi te ii.bdo.boo ywo uit. ii.doo.doo
YnSTStSSrSSSmSi SHt^SUn lMo«t tnal wuto only J cUHiunt ^ ..s>c*u/iuxkat
J VUao MUatf coteai ^A^^oiul
(••• em. a) ^»isok «*im
'^■'i rrn
184
FINANCIAL DISCLOSURE REPORT (eoat'd)
RQIDELI., Marjorie O.
Data of topen
11/29/93
VIL INVESTMEhfTS and TRUSTS - Income, value, transactions
mA <i|»ilm tMMwei mm py. IfcT if iMrmllim)
> . • - '^ mt ■■■■II T^'r :-'-:
COWTINUATION PAGE
Maridian Bancozp (dc)
KP Cash Raserve Money
Mkt (dc)
5034 Asbury Avenue
Ocean City, NJ (J)
Duane, Morris t HecKscher
capital account
401-K at Vanguard Fidu-
ciary Co., Valley Forge
HS-10 Provident Capital
Mgint., Inc., Phila.
IKA - National Home Life
Assurance Co.
IRA - Delaware Group (S)
401-K at Vanguard (S)
IRA - National Home Lxte
Assurance Co. (S)
Trusts: See ATTACHMENT
div
div
int
NONE
NONE
NONE
NONE
NONE
NONE
A
1 HI— irctii «»«Mi •■ii.eoo ar iMt »ii,en w w,t«« f«i,ioi *• i,m« aHt.Mi u iii.eoo
5 (a.^giiJ! * "' '!:m:iagUi;'" — KlUiSi K W.i^ — !:iU!tR'aMli?SS4°^^ t:nM.artl'iSIg:S8l
T>Cu£/MaTkat
185
FINANCIAL DISCLOSURE REPORT (cont'd)
tUMm o< Pmrmoa toperUAp
JUNDELL, Harjorle O.
tet* of Itapcrt
11/29/93
VIII. ADDITIONAL INFORMATION or DCPLANATIONS.
IX. CERTIFICATION.
Id oonpliaoce widi the provisions of 2S U5.C t 455 and of Advisory Opinion No. 57 of tbe Advisory Cbmminee on
Judidsl Activities, and to the best of my knowledge at tbe time after reasonable inquiry, I did not perform any adjadicatory
function is any litigation during the period covered by this report is which I, my spouse, or my minor or dependent childrea
had a financial interest, as de&sed in Canon 3C(3)(c), in the outcome of such litigatioiL
I certify that all isformation given above (including information pertaining to my spouse and minor or dependent children,
if any] is accurate, true, and complete to the best of my knowledge and beiiet, and that any information not reported was
withheld because it met applicable sututory provisions permitting noD.disclosure.
I further oeniiy that earned income from outside employment and honoraria and the acceptance of gifts irtiicb have been
reported are is compliance with the provisions of 5 U.S.CA. app. 7, { SOI el seq., 5 U.S.C t 7353 and Judicial Conference
regulations.
Signature ,
NOTE: ANY
MAY BE SUBJECT
Due
11/29/93
RENDELL
AL WHO KNOWINGLY AND WILFWiY FALSIFIES OR FAILS TO FILE THIS REPORT
AND CRIMINAL SANCnONS (5 U.S.CA. APP. 6, t 104. AND 18 U.S.C S IWl.)
RLINO INSIRUCnONS:
MaD
signed ori^nal
and 3 additional
copies to:
Judicial Ethics Oommirtee
Administrative Office of the
United Slates Conns
Washiogton. DC 2QS44
186
Marjorie O. Rendell
Attachment to
Financial Diaclosura Report
dated Hovenber 29, 1993
I. POSITIONS.
I>ir«ctori
Associate
Trustee:
Officer:
Partner:
Philadelphia Bar Foundation
Acadeay of Vocal Arts
Avenna of th* Arts, Zae.
Bast Falls Advisory Board
of the Chestnut Bill National Bank
Market Street Bast la^rovenent
Association
Pennsylvania's Can^aign for Choice
Philadelphia Friends of Outward Bound
Visiting Nurse Association of
Greater Philadelphia
Visiting Nurse Society
University of Pennsylvania, by reason
of serving on the Athletic Advisory
Board
Visiting Nurse Association of
Greater Philadelphia (Vice Chair)
Avenue of the Arts, Inc. (Vice Chair)
Duane, Morris & Hecks cher
II. AGREEMENTS. ^
(continued) is to pay to Marjorie 0. Rendell, upon
withdrawal from partnership, a termination payment equal to the
average compensation received by her in calendar years 1991 and
1992 (approximately $200,000), in one lump sum, or in two annual
installments, at her option; terms now being reduced to %^iting.
Partnership capital of Marjorie O. Rendell will also be returned
upon withdrawal.
ITJlS.l
187
Marjorie 0. Rendell
Attachnent to
Financial Oi* closure Report
dated Movenber 29, 1993
ZZI. MON-ZNVESIMEHT ZNCOME.
(continued)
I wee offered two honoraria during the reporting period,
both of idiich were given instead, at my request, to Avenue
of the Arts, Inc. (a non-profit entity which is developing a
cultural district in Center City Philadelphia), as follows:
Phi Beta Kappa Society,
Philadelphia Chapter 5/92 $100.00
Newcomers Club,
Bryn Mawr, PA 9/93 $125.00
As Mayor of Philadelphia, my spouse has been offered
honoraria on many occaBions during the reporting period. He
did not accept any honoraria during such period, but
requested instead that contributions be made to the City of
Philadelphia's Department of Recreation or to Avenue of the
Arts, Inc.
VII. INVESTMENTS AND TRUSTS.
%
While reporting person and spouse believe they are residual/
contingent beneficiaries of two family trusts, they have no
current beneficial interests in, and receive no current
income (or principal) distributions from, either of such
trusts.
17713.1
188
RKANOAL STATCMENT
>?ET WORTH
HASJORIE 0. RENDELL
October 31, 1993
Plovide t cenffctt, cvitM flMAcU BM ««fft ittttmeat whkh iienUtts In deun
all tstett OncludLnt btflk aecouau, lul csuic, leeoridet, ttttstt, Inveitments. ind ether finaftdil
lio1di»|i) all UablUtiet Onclttdlnf debtt, mongtie*. loam, tad Mhcr financial eblit«dent) of
yeuncif, your ipeuse, and other inuncdiatc membeit of your bouiehold.
Assns 1
UABUTSS
CWk«kw«M<iita*i
tltmffMH»\iaa tiaatt •
lh>«Wii>5ifcWii ■«— il
>
^Q.Ad-
N«.MiMi».M«
AmomU m< mui iMtlnUc
'
AmmmimCKSi*!*
»Mft»mNUd<r«i«MKM<i
UapiUintoMiu
Z>iK bom odim
.
OOiv wptid ttx Mrf inttiwt
Deabtfiil
•cMid* (Sched. 2)
140, 0(
0
&»«] C4Utt ewnU-kdd Mh«au!« (Sched. 2)
i60,000
ChtBtl •wnmu in4 vlhtr Km pty.
ItMl tiulc merlittu rstWikl*
Oihu tfcbtJ-ittmlM:
AwiM uii eOicr ptneet: praptfiy
25,000
Cm(i TiJut-Uft intvtnci
0>)m *ij:u-i»miu:
ERISA/IRA Plans
193,000
«
Ttti] SikaiilM
547,0
10
V
KttWetft
394,9
7
Tout AMila 1 ,
41,947
Tettl SiUIUu Hid M •>«« X ,
241,9
7
COVTINCENT UABnJTSS
CEKEIUL ISTOXMATION
Ai totami, aonukfr cr guuiBlDC
0.
At* aty UM'J f)«d|«<r (Ad) (dMd.
no
OBluMtarcMtaclc
0
An yM icbBlinl Ir. Mgr loiti « bill
no
tttdQiIiM
0
Ht«t Ten um Wbi bar^rvpc^f
no
rwvIilM for Fttfcnl Inoomi Tu
0
Oitar ipMU 4<U
» 1
^_
• 525,000 home equity line of
credit availability at Meridian Bank
189
SCHEDOU: 1
Securities - Values as of 10/31/93
Mar-^oric O. Rendell
American Telephone
& Telegraph
General Electric
Massachusetts Housing
Finance Agency
(Dec. 1998)
Massachusetts Housing
Finance Agency
(Dec. 2000)
Prince Georges County,
Maryland (Dec. 1997)
Public Service
Enterprise Group
(Common Stock)
(Common Stock)
(Municipal Bonds)
(Municipal Bonds)
(Municipal Bonds)
(Common Stock)
$ 11,500,00
19,400.00
6,249.40
5,286.50
6,778.10
6,725.00
$ 55,939.00
Mflrjorie Pt Rgndgll
As Custodian for Jesse T. Rendell (dependent child)
Huffy Corp.
Kidder Peabody
Government Income Fund
Kidder Peabody
Equity Income Fund
Meridian Bancorp
Toys 'R' Us
(Common Stock)
(Mutual Fund)
(Mutual Fund)
(Common Stock)
(Common Stock)
$ 647.63
2,627.96
5,174.69
3,050.00
2,808.75
$14,309.03
(continued)
19007.1
190
Edward G. Rendell <apouBe>
As Custodian for Jesse T. Rendell ^dependent child^
Certificate of Accrual
of Treasury Security
(due November 1998)
E . I . DuPont de Nemours
Huffy Corp.
Meridian Bancorp
(Government Bond)
(Common Stock)
(Common Stock)
(Common Stock)
$ 3,870.35
4,762.50
981.25
3,050.00
$12,664.10
Edward G. and Marjorie O. Rendell < jointly >
DMC Tax Free
Income Trust
Municipal Investment
Trust:
Pennsylvania series 14
Pennsylvania series 13
(Mutual Fund)
(Unit Trust)
(Unit Trust)
$ 3,124.00
2,872.20
538.38
$ 6,534.58
19007.1
191
SCHEDULE 2
Real Estate Oimed and Mortgagee
Property
YaliiS
Mortgage
3425 Warden Drive
Philadelphia, PA
$210,000
$160,000
b. 5032 Asbury Avenue
5034 Asbury Avenue
Ocean City, NJ
$170,000)
$180,000)
$180,000
Both mortgages held by
United Savings Bank, Philadelphia, PA
192
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former name used.)
Thomas Ignatius Vanaskie
2. Address: List current place of residence and office
address (es) .
Current Place of Residence: Office Address;
Elliott, Vanaskie & Riley
Clarks Green, PA 600 Penn Security Bank Bldg
127 N. Washington Ave.
Scran ton, PA 18503
3. Date and place of birth.
November 11, 1953
Shamokin, PA
4. Marital Status (include maiden name of wife, or
husband's name). List spouse's occupation,
employer's name and business address (es).
I am married to the former Dorothy ("Dot") G. Williams.
Dot is currently a part-time student at Keystone Junior
College in LaPlume, PA. She devotes a siibstantial (unount
of her time to matters involving our children at our Lady
of Peace School in Clarks Green, Pennsylvania.
5. Education; List each college and law school you
193
have attended, including dates of attendance,
degrees received, and dates degrees were granted.
College;
1971 to 1975 — Lycoming College, Williamsport, PA
B.A., Magna Cum Laude, May, 1975
Lav School:
1975 to 1978 — Dickinson School of Law, Carlisle, PA
J.D., C\im Laude, June 1978
6. Emplovment Record; List (by year) all business or
professional corporations, companies, firms, or
other enterprises, partnerships, institutions and
organizations, nonprofit or otherwise, including
firms, with which you were connected as an officer,
director, partner, proprietor, or employee since
graduation from college.
Summer of 1975 - following the completion of college and
prior to the start of law school, I worked as a
construction laborer. I cannot recall the name of the
firm by which I was employed.
Summer of 1976 - Internship as law cleric to the Honorable
Genevieve Blatt, Pennsylvania Commonwealth Court,
Harrlsburg, PA, and Internship at the Dickinson School of
Law Library, Carlisle, PA.
1976 to 1977 School Year - Internship in the Law Bureau
of the Pennsylvania Public utility Commission,
Harrisburg, PA.
Summer of 1977 - summer Associate at Dilworth, Paxson,
Kalish & Kauffman, Philadelphia, PA
1977-1978 School Year - Legal Research Consultant to
Clarence D. Bell (Delaware County) , Minority Chairman of
the Consumer Affairs Committee, State Senate, Harrisburg,
PA.
September, 1978 to September 1980 - Law Clerk to the
Honorable William J. Nealon, then Chief Judge of the
United States District Court for the Middle District of
Pennsylvcmia .
September, 1980 to January 1986 - Associate in the
Scranton Office of Dilworth, Paxson, Kalish t Kauffman.
194
January 1, 1986 through March 19, 1992 - Partner,
Dilvorth, Pazson, Kalish & Kauffman. (In charge of the
firm's Scranton office since January, 1987.)
March 20, 1992 to the Present - Vice-President and Member
of the Board of Directors of Elliott, Vanaskie t Riley,
a Partnership of Professional Corporations, in charge of
its Scranton, PA Office.
7. Military Service; Have you had any military
service? If so, give particulars, including the
dates, branch of service, rank or rate, serial
number and type of discharge received.
I have not had any military service.
8. Honors and Awards ; List any scholarships,
fellowships, honorary degrees, and honorary society
memberships that you believe would be of interest
to the Committee.
M. Vashti Burr Award - Scholarship given annually
by the Dickinson School of Law's faculty to the
student deemed to be "most desezrving" having in
mind his economic needs and the excellence of his
industry and scholarship.
"Book Award" for highest grade in Torts I.
Member of the Dickinson Law Review Editorial Staff
- Selection based upon ranking in the top ten
percent of my class after the first year of law
school. (Final rank was fourth in class of 140
students. )
Member of the Dickinson Law School Appellate Moot
Court Board - Selection based upon performance in
legal writing and appellate moot court practice.
Member of the Dickinson School of Law International
Law Moot Court Team - Selection based upon academic
performance.
Member of the Dickinson School of Law's Woolsack
Society - membership based upon outstanding
academic achievement.
Article published in the inaugural edition of the
American Students of International Law Society
195
International Law Journal - Selection based upon
competitive writing process.
1974 - James A. Flnnegan Award - The highest award
given by the James A. Flnnegan Fellowship
Foundation. Selection Is based upon a competitive
essay contest, academic performance, and personal
recommendations. The award provided a six week
Internship with a state governmental agency In
Harrlsburg, PA.
1974-1975 - Member and President of the Lycoming
College Chapter of Omlcron Delta Epsllon, a
National Economics Honor Society.
1975 to present - Member of Phi Kappa Phi Honor
Society.
1975 - Lycoming College "Chieftain Award" - Given
annually to the College Senior who. In the opinion
of the students and faculty, had contributed the
most to Lycoming College through support of school
activities; had exhibited outstanding leadership
qualities; had worked efficiently and effectively
with the members of the college community; had
evidenced a good moral code; and whose academic
rank was In the upper half of the senior class.
(Graduated Magna Cum Laude with a G.P.A. of
3.87/4.00, majoring In political science with a
concentration In economics.)
1975 - Lycoming College "Tomahawk Award" - Given
annually to the "outstanding male athlete" at
Lycoming College.
1974 - Selected to the First Team of the College
Division Academic All-American Football Team; First
Team of the Middle Atlantic Conference Football
Team; Honorable Mention on the Associated Press All
American Football Teeun, College Division; Honorable
Mention on the Associated Press All State Football
Team for both colleges and universities; Honorable
Mention on the Associated Press All East Football
Team In the College Division.
1993 - Inducted into the Shamokin, Pennsylvania
Chapter of the Pennsylvania Sports of Hall of Fame.
1990 - Selected as a Member of "Who*s Who in
Practicing Attorneys."
1993 - Recipient of the Our Lady of Lourdes
196
Regional High School Alxunni Association Board of
Governors' Award for significant contributions to
the alimni organization.
9. Bar Associations t List all bar associations, legal
or judicial-related committees or conferences of
which you are or have been a member and give the
titles and dates of any offices which you have held
in such groups.
I am a member of the following bar associations and
professional organizations:
LacXawanna Bar Association
Pennsylvania Bar Association
American Bar Association
Pennsylvania Trial Lawyers Association
American Trial Lawyers Association
Northeastern Pennsylvania Trial Lawyers Association
Federal Bar Association
American Judicature Society
Z have served as Chair of the Continuing Legal Education
Committee of the Lackawanna Bar Association from 1991 to
the Present.
Z was elected a member of the Board of Directors of the
Lackawanna Bar Association in 1993.
Zn 1993, Z was appointed as a member of the Board of
Directors of the Northeast Pennsylvania Trial Lawyers
Association.
Zn 1992, Z was appointed to the Lawyers* Advisory
Committee for the United States District Court for the
Middle District of Pennsylvania.
Zn 1993, Z was appointed to the Civil Justice Reform Act
Committee for the United States District Court for the
Middle District of Pennsylvania.
10. Other Memberships; List all organizations to which
you belong that are active in lobbying before
public bodies. Please list all other organizations
to which you belong.
American Bar Association, Pennsylvania Bar Association,
Pennsylvemia Trial Lawyers Association and American Trial
197
Lawyers Association are active in lobbying before piiblic
bodies.
I served as President of Our Lady of Lourdes Regional
High School Alumni Association from its establishment in
1990 to May, 1993. I remain a member of the Board of
Governors of the Alumni Association.
I am a member of the Glen Oak Country Club, Clarks
Summit, PA, and of the Paupack Hills Golf & Country Club,
Greento%m, PA.
Through my firm, I maintain memberships in the Scranton
Area Chamber of Commerce, the Scranton Area Fotindation,
and the Economic Development Council of Northeastern
Pennsylvania.
11. Court Admission: List all courts in which you have
been admitted to practice, with dates of admission
and lapses if any such memberships lapsed. Please
explain the reason for any lapse of membership.
Give the same information for administrative bodies
which require special admission to practice.
November 27, 1978 - Pennsylvania Supreme Court.
November 3, 1980 - United States District Court for the
Middle District of Pennsylvania.
March 25, 1982 - United States District for the
Eastern District of Pennsylvania.
June 16, 1982 - United States Court of Appeals for
the Third Circuit.
April 18, 1983 - The Supreme Court of the United
States.
12. Published Writings; List the titles, publishers,
and dates of books, articles, reports, or other
published material you have written or edited.
Please supply one copy of all published material
not readily available to the Committee. Also,
please supply a copy of all speeches by you on
issues involving constitutional law or legal
policy. If there were press reports about the
speech, and they are readily available to you,
please supply them.
198
Comment, The State Sovereignty Doctrine Since National
League of Cities v. Usery; A New Constitutional
Interpretation under the Commerce Clause, 81 DICK. L. REV.
599 (1977).
The European Patent Convention: State Sovereignty
Surrendered to Establish a Supranational Patent, 1 A8IL8
INTERNAT'L L.J. 73 (1977).
I provided the "Civil Practice Update" at the 1990
Lackawemna County Bench Bar Conference. The materials I
prepared in connection with that conference consisted of
case summaries covering approximately 100 decisions
involving civil litigation matters under both Federal and
State lav announced in the previous 12 months.
In December of 1990 I provided a lecture titled "Federal
Practice Update" at a seminar sponsored by the
Pennsylvania Trial Lawyers Association in Scranton,
Pennsylvania.
In December of 1992 I made a presentation on the subject
of "Trial Preparation" at a seminar sponsored by the
Pennsylvania Trial Lawyers Association.
Two Copies of the law review articles and one copy of the
course materials I prepared accompany this <juestionnaire.
13. Health: What is the present state of your health?
List the date of your last physical examination.
Excellent
June 29, 1993
14. Judicial Office; State (chronologically) any
judicial offices you have held, whether such
position was elected or appointed, and a
description of the jurisdiction of each such court.
None .
15. Citations: If you are or have been a judge,
provide: (1) citations for the ten most
significant opinions you have written; (2) a short
summary of and citations for all appellate opinions
where your decisions were reversed or where your
judgment was affirmed with significant criticism of
your substantive or procedural rulings; and (3)
199
citations for significant opinions on federal or
state constitutional issues, together with the
citation to appellate court rulings on such
opinions. If any of the opinions listed were not
officially reported, please provide copies of the
opinions.
Not applicable.
16. Public Office; State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such
positions were elected or appointed. State
(chronologically) any unsuccessful candidacies for
elective public office.
None.
17. Legal Career;
a. Describe chronologically your law
practice and experience after graduation
from law school including:
1. whether you served as clerk to
a judge, and if so, the name of
the judge, the court, and the
dates of the period you were a
cleric;
Sept. 1978 to Sept. 1980 - Lav
Cleric to the Hon. William J.
Nealon, then Chief Judge of the
U.S. District Court for the
Kiddle District of
Pennsylvania .
2. whether you practiced alone,
and if so, the addresses and
dates ;
I have not been engaged in the
practice of lav by myself.
3. the dates, names and addresses
of law firms or offices,
companies or governmental
8
200
agencies with which you have
been connected, and the nature
of your connection with each;
September, 1980 through
December, 1985 - Associate in
the Scranton, PA office of
Dilworth, Pazson, Kalish &
Kauffman. Our Scranton address
was 600 Penn Security Bemk
Bldg., 127 N. Washington Ave.,
Scranton, PA.
January l, 1986 to March 19,
1993 - Partner in the Scranton
Office of Dilworth, Paxson,
Kalish & Kauffman. I was in
charge of the Dilworth Scranton
office from January 1, 1987 to
March 19, 1992.
March 20, 1992 to the Present -
Vice-President and member of
the Board of Directors of
Elliott, Vanaskie t Riley, a
Partnership of Professional
Corporations, in charge of its
Scranton, PA Office.
b. 1. What has been the general character
of your law practice, dividing it
into periods with dates if its
character has changed over the
years?
The general character of my law
practice has been general civil
litigation, with particular emphasis
in complex contract, commercial,
environmental, employment, and
products liability litigation.
Prior to 1985 I was involved in some
criminal defense matters. Since
1985, however, I have restricted my
practice to non-criminal defense
matters. A small percentage of my
practice has also been devoted to
general representation of some small
businesses.
201
2. Describe your typical former
clients, and mention the areas, if
any, in which you have specialized.
Former clients include:
Individuals in employment
discrimination, trade secret,
restrictive covenant, contract,
commercial, products liability, and
personal injury litigation.
- Closely-held companies in commercial
and contract litigation.
Large publicly held companies in
contract, commercial, and products
liability litigation.
American sxibsidiaries of foreign
corporations in environmental,
employment, and products liability
litigation.
A municipal authority in contract
litigation.
A legislatively established
insurance organisation for no-fault
automobile insurance benefits in
statutory interpretation and
insurance coverage litigation.
c. 1. Did you appear in court frequently,
occasionally, or not at all? If the
frequency of your appearances in
court varied, describe each such
variance, giving dates.
I have appeared in court frequently,
having practiced in each of the
three Federal District Courts in
Pennsylvania, the Bankruptcy Court
for the Middle District of
Pennsylvania, the Bankruptcy Court
for the Southern District of
Florida, the United states Court of
Appeals for the Third Circuit, the
United States Supreme Court, the
Pennsylvania Supreme, Superior and
Commonwealth Courts, and the trial
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202
courts in Lehigh, Schuylkill,
Northampton, Luzerne, Monroe,
Laclcavanna, Pike, Wayne, Lancaster,
Cumberland, Wyoming, Bradford,
Dauphin, Lycoming, Philadelphia and
Westmoreland Counties. I have also
represented clients in matters
pending before the Pennsylvemia
Environmental Hearing Board luid the
Pennsylvania Board of Claims.
2. What percentage of these appearances
was in:
(a) federal courts;
50%
(b) state courts of record;
45%
(c) other courts.
5%
3. What percentage of your litigation
was:
(a) civil;
Since 1985, one hiindre4 percent of
my litigation has been civil
litigation. Prior to 1985,
approximately ninety- five percent of
my practice was devoted to civil
litigation and five percent of my
practice devoted to criminal defense
work.
(b) criminal.
See answer to (a) .
4. State the number of cases in courts
of record you tried to verdict or
judgment (rather than settled) ,
11
203
indicating whether you were sole
counsel, chief counsel, or associate
counsel .
I have tried to verdict or judgment in
courts of record tvelve cases. In four
of those cases I served as sole counsel;
in six of those cases I served as lead
counsel; and in the remaining two cases I
served as associate counsel.
I have served as lead counsel in taking
over litigation following trials or
arbitration hearings in at least six
other separate matters. I was involved
in the representation of these matters
until final judgment.
I have served as lead or sole coxmsel in
approximately twenty cases that went to
final judgment based upon case-
dispositive motions, with approximately
fifteen of those cases decided on the
basis of a summary judgment record that
included extensive discovery.
Finally, I have served as lead or sole
counsel in a number of cases that were
settled following the start of trial or
after the completion of extensive pre-
trial discovery and the final pre-trial
conference .
5. What percentage of these trials was:
(a) jury; (b) non-jury.
Of the cases in which I have been
involved that have been tried to verdict
or judgment, two have been jury trials
and ten have been non-jury trials.
Approximately six cases were settled
following the selection of juries and the
commencement of trial.
18. Litigation: Describe the ten most significant
litigated matters which you personally handled.
Give the citations, if the cases were reported, and
the docket number and date if unreported. Give a
capsule summary of the substance of each case.
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204
Identify the party or parties whom you represented;
describe in detail the nature of your participation
in the litigation and the final disposition of the
case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the
judge or judges before whom the case was
litigated; and
(c) the individual name, addresses, and
telephone numbers of co-counsel and of
principal counsel for each of the other
parties.
A. Raqnar Benson, Inc. v. Bechtel Power Corp, 651 P.
Supp. 962 (M.D. Pa. 1986), aff 'd mem. , 833 F.2d 303 (3rd
cir. 1987) - Ragnar Benson, Inc. claimed that Bechtel
Power Corporation ("Bechtel") had delayed its
construction of cooling towers at the Limerick Nuclear
Generating Station, located near Pottstown, Pennsylvania,
allegedly resulting in Ragnar Benson incurring
substantial cost overruns. I represented Bechtel, which
counterclaimed to recover overpayments it had made to
Ragnar Benson. Ragnar Benson's claims totaled more than
$750,000. Bechtel *s counterclaim sought $250,000.
Litigation involved thousands of records pertaining to
construction of the cooling towers over a three year
period. The case was tried in May of 1986 to the
Honorcddle R. Dixon Herman of the Middle District of
Pennsylvania. I bandied the examination and cross-
examination of all witnesses, as well as presentation of
all arguments and preparation of Requests for Findings of
Fact and Post-Trial Briefs. Following a two wee)c trial.
Judge Herman rejected Ragnar Benson's claims and awarded
judgment in favor of Bechtel on its counterclaim. See
651 F. Supp. 962 (M.D. PA). On appeal, the Third Circuit
affirmed, without opinion. Serving as my associate
coiinsel at trial was John L. Heaton, Esq., 521
Transportation and Safety Building, Harrisburg, PA 17120,
(717) 787-5473. Opposing counsel was Joseph Conway,
Esq., 2510 One PPG Place, Pittsburgh, PA 15222, (412)
471-8300.
B. Czerw V. Grove Manufacturing Company, Docket No. 83-
CIV-6005 - Plaintiff's husband was killed when the
hydraulic firetruck ladder he was occupying in fighting
a fire in Taylor, Pennsylvcmia contacted a high voltage
line. I represented Grove Manufacturing company, the
manufacturer of the ladder. Defense of this claim
involved coordination of expert testimony from mechanical
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205
and electrical engineers as well as professional
firefighters. Following a two week jury trial in
Lackawanna Coxinty before the Honorable 8. John Cottone in
October of 1988, a jury returned a verdict in favor of
Grove Manufacturing Company. No appeal was taken. I was
lead counsel at trial and conducted examination of all
witnesses, jury selection and all arguments. I was
assisted by Kevin C. Quinn, Esq. of my firm. Opposing
counsel were Patrick E. Dougherty, Esq., Dougherty,
Mundy, Leventhal & Price, 459 Wyoming Avenue, Kingston PA
18704, (717) 288-1427, Paul J. Drucker, Esq., Jablon,
Epstein, Wolf & Drucker, Bellevue, 9th Floor, 200 8.
Broad Street, Philadelphia, PA 19102, (215) 922-7100, and
Marianne Gilmartin, Esq., Lenahan t Dempsey, Kane
Building, N. Washington Ave., Scranton, PA 18503, (717)
346-2097.
C. Tiiwm tr. Llinas, Docket Ho. 86-13E - I represented
Dr. Lawrence Tama in this action to enforce a covenant
not to compete in a contract between Dr. Tama and his
independent contractor. Dr. Llinas. The defendant
claimed the right to pay liquidated damages of $50,000 in
satisfaction of a two year restrictive covenant. Several
attorneys had informed Dr. Tama that he could not enforce
the restrictive covenant. Following a three day trial in
July of 1986, Judge Williams, Senior Judge in Bradford
County, enjoined Dr. Llinas from breaching the
restrictive covenant. On appeal, the Pennsylvania
Superior Court affirmed. Docket No. 00493HB686 of 1986.
I was lead counsel and conducted the examination of all
witnesses and argximents to the court. Opposing counsel
was Howard Levinson, Esq., Rosenn, Jenkins & Greenwald,
15 south Franklin street, Wilkes-Barre, PA 18701, (717)
826-5600.
D. United States v. Tabor Court Realtv. Scott F. Linde
Party to the Agreement of Sale. 943 F.2d 335 (3rd Cir.
1991), cert, denied. 117 L.Ed. 2d 413 (1992). - I
represented Scott Linde, who had contracted to purchase
approximately 600 acres of land in Lackawanna County from
the court- appointed Receiver of the Raymond Colliery
Companies. The total consideration was approximately
$1.5 million. Linde had conditionally assigned his
interests under this Agreement of Sale to Carrier Coal
Enterprises. Following a hearing in January of 1989, the
Honorable Malcolm Muir of the Middle District of
Pennsylvania concluded that the assignment improperly
interfered with the court-directed bidding process on the
property in question. I represented Linde on appeal to
the United States Court of Appeals for the Third Circuit.
Carrier Coal Enterprises elected not to appeal. In order
to prevail on appeal we had to establish that the
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206
district court had abused its discretion. In October of
1989, the Third Circuit, in an unreported opinion, agreed
with our position and reversed and remanded the matter to
the district court for further hearings. Following a two
day trial in April of 1990, the district court concluded
that Linde had not acted improperly in entering into the
assignment. There then ensued litigation between Linde
and Carrier Coal Enterprises as to whether the Assignment
remained in effect. The district court ruled in favor of
Linde, but the Third Circuit reversed and remanded the
matter once again. See 943 F.2d 335 (3rd cir. 1991).
The Supreme Court denied certiorari. 117 L.Ed. 2d 413
(1992). On the second remand the district court foxind in
favor of Carrier Coal Enterprises, and the Third Circuit
affirmed without opinion. Opposing counsel were Thomas
P. Brennan, Esq., Gallagher, Brennem & Gill, 300 First
Eastern Plaza, 60 Pxiblic Square, Wilkes-Barre, PA 18701
(717) 824-3208, and Joseph G. Ferguson, Esq., Rosenn,
Jenkins & Greenwald, 15 8. Franklin Street, Wilkes-Barre,
PA 18701 (717) 826-5600.
E. EcXerslev V. WGAL-TV. Inc.. 831 F.2d 1204 (3rd Cir.
1987). - This litigation, brought in the Middle District
of Pennsylvania under the Employee Retirement Income
Security Act, was the sec[uel to a settlement of
litigation in the Eastern District of Pennsylvania
concerning Mr. Eckersley's entitlement to a bonus based
upon the net profit realized on the sale of a
Massachusetts television station. We claimed that the
amount received in settlement should be included in the
calculation of Mr. Eckersley's retirement pension. Judge
Kosik of the Middle District of Pennsylvania ruled in
favor of the defendant. On appeal, however, the United
States Court of Appeals for the Third Circuit agreed with
our position and reversed the district court ruling. See
831 F.2d 1204 (3rd Cir. 1987). Opposing counsel was K.
Jane Fankhanel, Esq., Fulbright and Jaworski, 666 Fifth
Avenue, 31st Floor, New York, Mew York 10103, (212) 318-
3000.
P. Stark V. Pennsylvania National Mutual Casualty
Insurance Company. Docket No. 23 of 1987 - Donna Stark,
a member of the Honesdale Borough Police Force, was
involved in a high speed chase of a reckless driver. The
police cruiser occupied by Officer Stark spun out of
control and slammed into a parked vehicle. The vehicle
Officer Stark was chasing was uninsured at the time of
the accident. We brought an action against the uninsured
motorist carrier for the Borough of Honesdale, which
defended on the ground that it enjoyed the Borough's
workers' compensation immimity. This defense was based
upon Pennsylvania Supreme Court precedent pre-dating the
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207
1984 Pennsylvania Motor Vehicle Financial Responsibility
Act. In May of 1989, the Hon. Robert Conway of the Court
of Common Pleas of Wayne County ruled in favor of the
insurance company. We appealed to the Pennsylvania
Superior Court (Docket Nos. 01601-PHL-89 and 01602-PHL-
89), arguing that the Pennsylvania Supreme Court
precedent was no longer applicable in light of the 1974
legislation. The Superior Court agreed, xruling in
Officer Stark's favor on this issue in 1990 in an
unpublished opinion. The insurance company was
unsuccessful in its efforts to have the Pennsylvania
Supreme Court hear the case. My representation in this
matter began in 1987 and continues to the present.
Opposing counsel is Howard Levinson, Esq. , of Rosenn,
Jenkins & Greenwald, 15 S. Fremklin Street, Wilkes-Barre,
PA 18701, (717) 826-5600.
6. Allegheny County Sanitary Authority v. United States
Bnvi ro^iwental Protection Agency » et al.» 557 F.Supp. 419
(W.D. Pa. 1983), affld, 732 F.2d 1167 (3rd Cir. 1987) -
This action was brought in the United States District
Court for the Western District of Pennsylvania to
determine the entitlement of the Allegheny County
sanitary Authority ("ALCOSAN*') to a multi-million dollar
grant under the Federal Water Pollution Control Act. A
principal issue in this litigation was whether the state
environmental agency charged with administering the
federal funding program was amenable to suit for alleged
violations of the Federal Water Pollution Control Act.
In an Opinion reported at 557 F.Supp. 419 (W.D. Pa.
1983), the Hon. Hubert I. Teitelbaum ruled against
ALCOSAN. The Third Circuit, in an Opinion reported at
732 F.2d 1167 (3rd Cir. 1984), affirmed the trial court.
I served as co-counsel in this litigation with Gov.
Robert P. Casey. I was principally responsible for the
preparation of the trial and appellate court briefs.
Following the Third circuit decision, I assumed the role
of lead counsel in this litigation, which was eventually
decided in 1987 on a summary judgment motion. The trial
court ruling on the summary judgment motion is not
reported. Opposing counsel included Dean Diinsmore, Esq.,
United States Department of Justice (202) 633-2216;
Mazine Woelfling, Esq. (717) 787-3483, now a member of
the Pennsylvania Environmental Hearing Board; and James
J. Kutz, Esq. , Eekert, Seamans, Cherin & Mellott, One
South Market Square Building, 213 Market Street,
Harrisburg, PA 17701. This matter was handled between
1982 and 1987.
H. Precision National Plating Services. Inc. v. United
States Pwtyi fftTiwental Protection Agency - I served as lead
counsel, representing Precision National Plating
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208
Services, Inc. ("Precision"), in litigation concerning
the Environmental Protection Agency's "emergency powers"
provisions under the Comprehensive Environmental
Response, Compensation and Liability Act, as amended
("CERCLA"), and the Safe Drinking Water Act. EPA had
threatened to issue unilaterally an Administrative Order
that could have resulted in Precision incurring hundreds
of thousands of dollars in investigative and remedial
actions that were not compelled by any imminent threat to
public health or the environment. Initially, ve brought
an action in the United States District Court for the
Eastern District of Pennsylvania for immediate injunctive
relief. No. 90-6813. Although ruling against Precision
on jurisdictional grounds, the Hon. J. William Ditter
expressed sympathy with Precision's "plight," observing
that the record revealed that Precision had responded to
all reasonable requirements imposed upon it by state
environmental agencies and that the matter of which EPA
was complaining certainly did not appear to involve an
imminent threat to public health or the environment.
1990 W.L. 191968 (E.D. PA 1990). Subsequently, EPA
issued an Administrative Order, purporting to exercise
its "emergency powers" under both CERCLA and the Federal
Safe Drinking Water Act. Because jurisdiction over
orders issued under the Safe Drinking Water Act is vested
in the appellate courts, we caused to be filed a Petition
for Review with the United States Court of Appeals for
the Third Circuit. (Docket No. 91-3158.) Following our
briefing of issues involving the proper exercise of the
"emergency powers" provisions and EPA's authority to
effectively enforce compliance with administrative orders
through the threat of acczrual of substantial monetary
penalties, EPA and Precision resolved the dispute in 1991
on terms favorable to Precision yet protective of pviblic
health and safety. Opposing counsel was Karen Kellen,
Esq. , United States Environmental Protection Agency,
Region III (3RC22), 841 Chestnut Building, Philadelphia,
PA (215) 597-9800.
I. Scranton Redevelopment Authority v. Pennsylvania
Department of Transportation. Pa. Board of Claims Docket
No. 658 — This action arose out of condemnation of
properties in South Scranton. The Pennsylvania
Department of Transportation ("PennDOT") had used the
Scranton Redevelopment Authority as a condemnation agency
to acquire a number of properties along a proposed right-
of-way. PennDOT later scrapped its plans for the
highway, and did not sign a proposed written contract
with the Scranton Redevelopment Authority for the
acquisition of the properties in question. An action was
brought before the Pennsylvania Board of Claims, seeking
to impose liability on promissory estoppel and contract
17
209
theories. PezmDOT defended on the ground that no written
contract between it and the Redevelopment Authority
existed. We were retained following the Board of Claims
trial to prepare proposed findings of fact, conclusions
of law, and a memorandum of law. I was the principal
drafter of our filings, which were submitted in 1983.
The Board of Claims ruled in our favor in 1984. The
matter was subsequently settled in 1985 on appeal to the
Commonwealth Court, resulting in a substantial recovery
for the financially distressed City of Scranton. I
served as co-counsel on this matter with Governor Robert
P. Casey and James W. Brown, Esq. 225 Main Capital Bldg.,
Harrisburg, PA 17120, (717) 787-5403. opposing counsel
was Spencer Manthorp, Esq. , then Chief Coiinsel for
PennDOT, Department of Transportation, Room 313,
Transportation & Safety Building (717) 787-2063.
J. Maid Rite Steak Co. v. United States, 643 F. Supp.
1162 (M.D. Pa. 1986). — I, along with Morey M. Myers,
Esq., represented Maid Rite SteeiX Co. ("Maid Rite") in an
action challenging the Internal Revenue Service's denial
of Maid Rite's attempt to obtain an investment tax
credit. The principal owners of Maid Rite had
erroneously claimed the investment tax credit at issue on
their personal tax returns. An examination of the
owners' tax returns disclosed that the owners were not
entitled to the tax credit. Thereafter, Maid Rite
attempted to claim the credit, but it was denied by the
Internal Revenue Service. I was principally responsible
for preparation of a brief in support of our s\immary
judgment motion. The Hon. William J. Nealon ruled in
favor of Maid Rite, concluding that the owners had not
made a binding irrevocable tax credit election by
erroneously and in good faith claiming the investment tax
credit themselves. The court also ruled that, even if
such election was binding, the Internal Revenue Service
abused its discretion in refusing to permit the taxpayers
to amend their return. The court's decision is reported
at 643 F.Supp. 1162 (M.D. PA 1986). Opposing counsel was
Stephen Carlton, (202) 724-6514, United States Department
of Justice. Co-counsel was Morey M. Myers, Schnader^
Harrison, Segal g Lewis, First Eastern Bank Bldg.,
Scranton PA (717) 342-6100.
19. Legal Activities; Describe the most significant
legal activities you have pursued, including
significant litigation which did not progress to
trial or legal matters that did not involve
litigation. Describe the nature of your
participation in this question, please omit any
information protected by the attorney-client
privilege (unless the privilege has been waived.)
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210
I served as lead counsel in a Civil RICO action
concerning the efforts of a healthcare provider to
circumvent Certificate of Need requirements to establish
a radiation therapy center. Powers v. WiH ifl]ft**p?rt
Hospital « et al. (M.D.Pa./ Docket 89-0059) I represented
a radiation oncologist whose practice was threatened by
the establishment of the competing radiation therapy
center. Defendants were represented by prominent
Philadelphia, Pittsburgh and Atlanta law firms. I
coordinated extensive discovery efforts. The case, along
with parallax litigation in the Middle District of
Pennsylvania, the Pennsylvania Commonwealth Court, and
the Pennsylvania Department of Health, ultimately
settled.
I
A significant litigation matter which settled on the eve
of trial was Condella v. Duo Fast Corporation (Lackawanna
Coiinty, Docket 88-CIV-6187) . This was a products
liability case in which I represented the plaintiffs.
William Condella was severely injured when a nail from a
nail gun discharged through his skull, embedding below
the scalp line. Fortunately, Mr. Condella had not
sustained severe neurological impairment. Extensive
discovery yielded information concerning a design defect
in the nail gun and negligent conduct on the part of the
companies in charge of the construction site. The case
was eventually settled under terms that will pay Mr. and
Mrs. Condella more than $4.6 million.
I provided pro bono representation to a local non-profit
gymnastics training center in connection with its efforts
to, secure a building at which to conduct its activities
for the youth of this area.
From 1991 to the present I have served as Chair of the
Continuing Legal Education Committee of the Lackawanna
Bar Association. In that capacity, I developed a program
of monthly continuing legal education programs presented
to members of the Lackawanna Bar Association. We have
also invited students and professors of local
universities and colleges to attend our presentations.
I have also participated in the development of continuing
legal education programs that satisfy the requirements
for mandatory continuing legal education on ethics
issues.
I have served as a member of the Middle District of
Pennsylvania Lawyers' Advisory Committee. The Committee
meets with the Chief Judge of the District on a quarterly
basis. Members of the Committee also attend the Third
Circuit Judicial Conference. The Committee serves as an
19
211
advisory group with respect to procedural and other
practice-related issues. For example, during the time
that I have served on the Committee we have provided
advice with respect to the establishment of a Law student
Practice Rule.
In March of 1993 I was appointed to the Civil Justice
Reform Act Committee for the Middle District of
Pennsylvania. Our group meets on a periodic basis and
has finalized a Civil Justice Reform Act Plan for the
Middle District.
20
212
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
QUESTIONNAIRE FOR JUDICIAL NOMINEES
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
1. List sources, amounts and dates of all anticipated
receipts from deferred income arrangements, stock,
options, uncompleted contracts, and other future
benefits which you expect to derive from previous
business relationships, professional services, firm
memberships, former employers, clients, or
customers. Please describe the arrangements you
have made to be compensated in the future for any
financial or business interest.
Pursuant to a letter agreement dated August 12, 1993, my
former law firm, Dilworth, Paxson, Kalish & Kauffman, has
agreed to pay me a total of $5,000 in 1994 in four
quarterly installments. This payment, as well as a
$1,500 payment received in October of 1993, is in
recognition of the fact that the recent settlement of a
contingent fee case resulted in a substantial fee to the
Dilworth law firm.
Discussions pertaining to payment of a sum certain in
recognition of my contributions to my present firm during
1993 and as compensation for the value of my interest in
the firm are presently ongoing. It is hoped that any
payments will be completed prior to my departure from the
firm. If not, both sides have agreed that any payments
will be completed within 3 years of my departure, and no
payments will be contingent upon the occurrence of any
event or outcome of any litigation.
Explain how you will resolve any potential conflict
of interest, including the procedure you will
follow in determining these areas of concern.
Identify the categories of litigation and financial
arrangements that are likely to present potential
conflicts-of-interest during your initial service
in the position to which you have been nominated.
In determining those situations that mandate
disqualification or require a careful evaluation of the
circumstances to determine whether recusal is warranted,
I will be guided by the Canons of the Code of Judicial
21
213
Conduct of United States Judges, statutes governing
disqualification of United states Judges, 28 U.S.C. §§144
and 455, advisory rulings of the Committee on Codes of
Conduct of the Judicial Conference of the United States,
and applicable case law.
I anticipate that during my initial service in the
position to which I have been nominated conflicts of
interest will arise if cases in which either the Dilworth
law firm or my present law firm are counsel of record for
any parties. I will establish a procedure by which I
will not be assigned cases in which either of these law
firms represent the complaining party for an appropriate
period of time after the completion of any financial
arremgements involving each of the firms. I will also
establish a screening procedure to insure prompt recusal
for that period of time once it is determined that either
firm is involved in the litigation on behalf of a
defendant.
Mandatory, non-waivable disqualification is essential
where, inter alia, the judge has "a personal bias or
prejudice concerning a party, or personal Icnowledge of
disputed evidentiary facts concerning the proceedings,"
28 U.S.C. §455(b)(l); or "[wlhere in private practice he
served as a lawyer in the matter in controversy or a
lawyer with whom he previously practiced law served
during such association as a lawyer concerning the
matter, or the judge or such lawyer has been a material
witness concerning it." 28 U.S.C. §455(b)(2). A
screening procedure will be established to determine
whether mandatory non-waivable disqualification grounds
exist. If such grounds exist, prompt notification of my
recusal will be made to counsel for all parties.
In those instances when litigation is assigned to me that
involves parties previously represented by me or my law
firm in matters luxrelated to the assigned case, the fact
of my or my law firm's prior representation of a party to
the litigation will be promptly and fully disclosed, and
I will recuse myself if any party objects to my continued
involvement in the litigation. Even if no party objects,
I will recuse myself if I conclude that a reasonable
person possessing Icnowledge of all the circumstances
would "harbor doubts about [my] impartiality." Huff v.
Standard Life Ins. Co.. 683 F.2d 1363, 1369 (11th Cir.
1982) .
I also recognize that it is my obligation to inform
myself about personal and fiduciary financial interests
of not only myself, but also my spouse eind minor
children, to avoid the appearance of impartiality. See 28
22
214
U.S. §455(c). In this regard, there are no "financial
arrangements" to which I am presently a party, other than
those involving my former and present lav firms, that I
perceive are likely to present potential conflicts-of-
interest during my initial service as a district court
judge.
3. Do you have any plans, commitments, or agreements
to pursue outside employment, with our without
compensation, during your service with the court?
If so, explain.
No.
4. List sources and amounts of all income received
during the calendar year preceding your nomination
and for the current calendar year, including all
salaries, fees, dividends, interest, gifts, rents,
royalties, patents, honoraria, and other items
exceeding $500 or more (If you prefer to do so,
copies of the financial disclosure report, required
by the Ethics in Government Act of 1978, may be
substituted here.)
See the attached Financial Disclosure Report, Form
AO-10, Rev. 1/93.
5. Please complete the attached financial net worth
statement in detail (Add schedules as called for) .
See attached.
6. Have you have held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the
candidate, dates of the campaign, your title and
responsibilities .
I have served as Counsel to Governor Robert P. Casey's
Campaign Committee since 1986. My responsibilities
included communication with the Pennsylvania Bureau of
23
215
Elections and rendering advice on the Pennsylvania
Campaign Finance Law. I reviewed Campaign Expense and
Contribution Reports for compliance with Pennsylvania
law.
I previously served on the Finance Committee for Gerald
Stanvitch, a candidate for the Mayor of Scranton in 1993.
24
216
UNITED STATES SENATE
COMMITTEE ON THE JUDICIARY
QUESTIONNAIRE FOR JUDICIAL NOMINEES
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the
American Bar Association's Code of Professional
Responsibility calls for "every lawyer, regardless
of professional prominence or professional
workload, to find some time to participate in
serving the disadvantaged." Describe what you have
done to fulfill these responsibilities, listing
specific instances and the amount of time devoted
to each.
I have accepted appointments to represent indigent
criminal defendants and indigent federal and state
prisoners. The most recent occasion was in 1987
and 1988, when I was appointed by the United States
Court of Appeals for the Third Circuit to represent
an inmate at the State Correctional Institution in
Huntingdon, Pennsylvania, contesting his long term
incarceration in "administrative segregation." I
devoted more than 100 hours to the pursuit of that
appeal .
I accepted an appointment by the Third Circuit to
represent an indigent prisoner in appealing from a
federal court conviction (United States v.
Frankenberry , 696 F.2d 239 (3rd Cir. 1982)), and an
appointment by the district court to represent an
indigent defendant in a federal court trial. In
each instance I devoted substantially more than 100
hours in representing those clients.
I have also accepted other court appointments to
represent indigent defendants that did not proceed
to trial.
I have served pro bono as counsel to a non-profit
corporation providing gymnastics training to
hundreds of children in our area. Our
representation was instrumental in establishing
this non-profit training facility. I have
volunteered for the Laclcawanna Bar Association pro
bono project. I have provided pro bono
representation to a n\imber of persons of low or
moderate income who were unable to afford legal
25
217
representation .
I have served as a volunteer on the United Way
Allocations Panel for Lackawanna County.
I have served as a coach in Little League Baseball
and youth basketball progreu&s.
I helped establish and served as President of Our
Lady of Lourdes Regional High School Alumni
Association, which has been instrumental in raising
money to fund scholarships for needy students.
Since 1990, I have devoted well in excess of 200
hours to the establishment of what is now a very
successful alumni organization.
I have volunteered as a speaker at youth programs
at my children's grade school and have served as a
moderator on class trip progreu&s.
I have devoted more than 50 hours in establishing a
successful ongoing CLE program for the Lackawanna
Bar Association.
Z devoted considerable time in preparing for and
delivering presentations on continuing legal
education matters to the members of the Lackawanna
Bar Association.
The American Bar Association's Commentary to its
Code of Judicial Conduct states that it is
inappropriate for a judge to hold membership in any
organization that invidiously discriminates on the
basis of race, sex, or religion. Do you currently
belong, or have you belonged, to any organization
which discriminates — through either formal
membership requirements or practical implementation
of membership policies? If so, list, with dates of
membership. What you have done to try to change
these policies?
I have never belonged to any organisation which
discriminates on the basis of race, sex or
religion.
Is there a selection commission in your
jurisdiction to recommend candidates for nomination
26
218
to the federal courts? If so, did it recommend
your nomination? Please describe your experience
in the entire judicial selection process, from
beginning to end (including the circximstances which
led to your nomination and interviews in which you
participated) .
Senator Harris Wofford established a Merit
Selection Committee for the judicial vacemcies in
the Middle District of Pennsylveuiia. The Committee
was comprised of 11 persons, who came from a
variety of backgrounds. I participated in the
process established by that Committee, which
included completion of a detailed questionnaire
(not unlike this questionnaire) ; an initial
Interview by a three-person panel of the 11 member
Committee; submission of a writing sample; and a
second interview conducted by the entire ll-member
Committee. The Merit Selection Committee
recommended me and 5 other applicants, from more
them 60 applicants, to Senator Wofford. Senator
Wofford selected me as his recommendation for one
of the two judicial vacancies in the Middle
District of Pennsylvania
I was evaluated by the American Bar Association
Standing Committee on the Federal Judiciary. The
evaluation process included completion of a
detailed questionnaire; submission of evidence of
legal writing ability; interviews of judges and
colleagues by a member of the ABA Committee; and an
interview of me by that member of the ABA
Committee. I have been informed that a siibstantial
majority of the Committee approved a "well-
qualified'* rating, the strongest affirmative
endorsement provided by the Committee, while a
minority approved a "qualified" rating.
I have undergone an extensive background
investigation by the Federal Bureau of
Investigation. The investigation included
completion of a detailed questionnaire and
interviews of neighbors, friends, professional
colleagues, judges, and others.
I have also completed questionnaires of the
Department of Justice, and I have participated in
extensive interviews with attorneys in the
Department of Justice.
Has anyone involved in the process of selecting you
as a judicial nominee discussed with you any
27
219
specific case, legal issue or question in a manner
that could reasonably be interpreted as asking you
how you would rule on such case, issue, or
questions? If so, please explain fully.
No.
5. Please discuss your views on the following
criticism involving "judicial activism."
The role of the Federal judiciary within the
Federal government, and within society generally,
has become the subject of increasing controversy in
recent years. It has become the target of both
popular and academic criticism that alleges that
the judicial branch has usurped many of the
prerogatives of other branches and levels of
government .
Some of the characteristics of the "judicial
activism" have been said to include:
a. A tendency by the judiciary toward problem-
solution rather than grievance-resolution;
b. A tendency by the judiciary to employ the
individual plaintiff as a vehicle for the
imposition of far-reaching orders extending to
broad classes of individuals;
c. A tendency by the judiciary to impose broad,
affirmative duties upon governments and
society ;
d. A tendency by the judiciary toward loosening
jurisdictional requirements such as standing
and ripeness; and
e. A tendency by the judiciary to impose itself
upon other institutions in the manner of an
administrator with continuing oversight
responsibilities.
It is imperative that a district court judge recognize
that it is the judiciary's mandate to adjudicate
disputes, and not to "solve problems." Disputes must be
adjudicated by application of the governing law to the
facts presented, not by re-writing the law or by
28
220
considering hypothetical facts. Where legislation
requires a particular result, the legislation may not be
re-vritten to achieve what an individual judge considers
to be a "more appropriate" result.
The judiciary should not employ "the individual plaintiff
as a vehicle for the imposition of far-reaching orders
extending to broad classes of individuals." Although a
decision in an individual case may have applicability to
others, the extent to which that decision is applicable
to others must await presentation of appropriate
controversies and consideration of particular factual
nuances that may distinguish one case from another.
Furthermore, cases should be heard and decided only when
brought by those having the requisite stake in the
outcome and where there exists the necessary adversity of
interests among the litigants. Otherwise, the doctrines
of standing and ripeness are perceived as mechanisms by
which litigation becomes a vehicle for "problem-solving"
as opposed to concrete dispute adjudication.
While the judiciary should refrain from "impos[ing]
itself upon other institutions in the manner of an
administrator with continuing oversight
responsibilities," there are some limited instances when
such action is appropriate. As a litigator, I have seen
the necessity to establish continuing judicial oversight
where resolution of a dispute involves regulation of the
conduct of the parties. Continuing oversight
responsibilities have long been recognized as appropriate
where conduct of private parties or governmental entities
imperils the economic or individual rights of affected
parties.
In short, Z believe it is the mandate of the judiciary to
resolve concrete disputes presented by parties having the
requisite adversity of interests and stake in the outcome
of the litigation. Where necessary, the relief decreed
by the judiciary must be adequate to safeguard the rights
of the prevailing parties without resulting in excessive
judicial entanglement in the other bremches of
government.
Z9
221
MTIPAYIT
I ~T~H-cMA^ :r. l/AA//iS/^^t^ , do swear that
the information provided in this statement is, to the best of my
knowledge, true and accurate.
Nov. /^. n^z
(DATE)
'TJZ.^J iA^^^~J^
(NAME)
/[JuLyuoM f. AUMyCZ^
(NOTARY)
30
222
FINANCIAL DISCLOSURE REPORT
»«tiun Raqolrvd »r <»■ nttica
tMSoim Act of 1919, Pub. L. lo.
101.194, »llif riT 10, 19(9
a u.a.c.A. App. e, (iioi-112)
1. Parsoa Rsportiag (I^asl oAaa, tint., alddl* lolci«l)
Vanaskie, Thomas I.
2. Court or Organliatlon
3. OaL* of Raport
11/18/93
4. Title (Article III ^\icgmn Indlcaca «ctlv« or
aenlor status: Mdglttra^a Judgaa indicate
fui-- or par'-tuiel
5. Report "Typm (chacfc appropriata typa)
X KoBlMtlon, Data 11/17/93
Inltlai Annual Pioal
6. Raporclng Pazlod
1/1/92 to 10/31/
7. CTiABbmzt or Offiza Adorata
12'? N. Washington Ave.
600 Penn Security Bank Bldg.
Scranton, PA 18503
8. On tna Daaia of tna loforaatloo coouload io CAia daport. It
la, Xa sy opinion. In coapllanca wltA applicabla lawa and
ragulatieoa
Reviawlng Offlcar Slonatura
IMPORTANT NOTES: The instructions accompanying this form must be foUowftL Complete all parts,
checking the NONE box for each section where you have no reportable information. S^ on last page.
93
I. POSITIONS. fReponing individual only; see pp. 7.s of Instructions.)
POSITION NA.ME OF ORGANtZATlON/ENnTY
I I NONE (So reporubla poalclona)
1/1/91-3/20/92 Partner Dilworth, Paxson, Kalish b Kauffman
3/21/92-Present Director
Elliott, Vanaskie & Riley
5/91-Present Director
Our Lady of Lourdes Regional Bigh School Aluinni Assoc.
i! AGREEMENTS. (Reporting individual only, s..s p. S-9 of Inilructions.)
O^'I'H I'ARTIES .\.ND TERMS
.om;
\3 raportAbla jgreamanca)
A.) 8/12/93 Agreement with Dilworth, Paxson, Kalish & Kauffman requiring payment tc -e of
55,000 in 4 quarterly installments during 1994.
B.) Participant in Dilworth, Paxson, Kalish & Kauffman Retirement plan
■!. ..C-.\- .. H3TMENT INCOME. ,.:.^
Da;
soL'RCE A\ -> -•?■;
al and spouse; see pp. 9-12 of In»;ru^'.
r.X' '- \COME
l\>;.r^ • -pouse's)
••iiini.-rar'.j . ?a\.)
I I M).\E
1/1/92-3/20/92 Dilworth, Paxson, Kalish i Kauffman (Parntership Income) 543,.. ■
rd=crtabla -or.-'.nveataont i.-.c..:«'
3/21/92-12/31/92 Elliott, North, Siedzikowski & Vanaskie, P.C. (Salary) $122. -tS
1/1/93-10/31/93 Elliott. North. Siedzikowski & Vanaskie. P.C. (Salary) Slil.--
4
in/q-^ Dilworth, Paxson, Kalish i Kauffman (contract payment) Sl.sc:
223
FIN;Q<CIAL disclosure report (cont'd)
UaMm of Pttrson fl«portla9
Vanaskie, Thomas r.
Mta at
% i.r.~
^ii •
IV. REIMBURSEMENTS and GIFTS- transportation, lodging, food„^ntQrtainment
(Includes those to spoa»e and dependent children: use the parentheticals "(S)" and "(pC)' to Lndlcate reportable
reimbursemenlx and gifts received by spouse and dependent chiidren, respectively. See pp.13-15 of Inslructjoiu.)
SOUKCE _ DESCRIPTION. , ...^ „ . _ . - ^.— —
Q
' NONE (No such rttportabla r«labur««a«nt.a gx glftaj
EXEMPTED
■9? -..^^l«r« -ttfi!
-
■w^/-^ •" C!.H aV0
^_.^. . „«
■^«»i -:*#i- /^«ms«n r^v*f>*— ^' .
_ --
^■•s, .. -^?»»»# :'-« '^■»-' -
,.. ---.»_., ;^,,-
V. OTHER GIPTS. (includes those to spons» and depfndrnt fhlhtot' lisF'the pareiitEetiaUs "(S)' and '(DC)' to
^^ indicate other gifts received by spouse and dependent children, leiptctltely.
Q
SOURCE
^ I NONE (NO sucB caporubla glft«)
DESCRIFIB3N
^ee'Pp.15-16 of Instructions.)
VALUE
EXEMPTED
-_ $_
VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person R-vp<insible
for liability by using the parenthetical "(S)" for separate liabilitv of spouse, "(J)" for Joint liability of rxjjorting
individual and spouse, and '(DC)* for liability of a dependent child. See pp.L6-l8 of^Instnictions.)
n
CREDITOR
NONE iHo reportabla llabilltlaa}
DESCRIPTION
\ M M CODE*
1 2/92 Loan from my retirement account under the Dilworth, Paxson, Kalish
& Kauffman Retirment Plan^
VALUI COOIS: J - SIS.OOO or laaa I - S15,0Ol to S50.000 I • 350,001 to SIOO.OOO M • 5100.00:
H ■ 5250,001 to 5500,000 o • $500,001 to SI,0C0.000 P - Mora tttan 51,000,000
224
FINANCIAL DISCLOSURE REPORT (canfd)
■•■• of Fftrvoa RapordDQ
Vanaskie , Thomas J -
^A.iT.r.^h'^
D«c« Of Raport
11/18/93
VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse
and dependent children; see pp. lft.27 of Instructions.)
CXBcrlprlon of A«a*ts
(liieliidlng trust *m—ZM)
Indicate, wbara appllcabla, ovn«r of
cha aaBat Cry ualag tJia oAranthacical
"(J)' far lolnt ownar»hlp of report-
ing indiviauai And Bpouaa, *[Sj"' for
■•p«r«ta owfiaratup by apouaa, *(DC)"
for owns «nip Dy dapaiulant calld.
Plac* '(X)' afCftT aACh aaavt
cxaapt iroB prlojr discloaura.
B.
Incon*
during
raportlng
parlotf
1
c.
Oroaa valoa
at end of
0.
Traaaaetlona during raportLog parlod
IK
coaa'
l»-B)
(2)
dij.;
raat ox
lot.r
(I)
Valoa?
Coda''
(J-P)
(2)
valua
Matnod,.
Coda^
buy, a* 11.
aargar.
tlonT
It nov aj(»«pt troB dlacloaura |
LIL:
Hontb-
Day
(3)
Valoa,
Coda^
tJ-Pl
(«)
Gain,
coda'
Tdantlty of
bavar/aallar
(il privata
traoaaetioQl
NONE (Ko raport«bla
IncoMa, aaaata, or
1/1/92 - 12/31/92 -
C
Div.
L
T
EXE
M P
T
Exempt
Dilworth, Paxson,
Kalish & Kauffman
Retirement Account
1/1/93 - 10/31/93
C
Div.
L
T
EXE
M P
T
Exempt
Dilworth. Paxson.
8
9
Retirement Account
10
" 1/1/92 - 12/31/92
A
Int.
J
T
EXE
M P
T
Exempt
Penn Security Dank &
11
Trust Co., Accounts
1
5244-732-1 and
1
58700
1
-.5
j
17
1/1/93 - 10/31/93
A "
Int.
J
T
EXE
M P
T
1
! Exempt
Penn Security Bank &
1
1
19
Trust Co., Accounts
20
■S244-7T7-1
1 Inco«»/o»lB CodMi »-Sl,000 or lua B-S1,001 to S2.500 C-S2,50l to 5,000 D-S5.301 - '^
rsaa Col. B^ t D«) E-S15.001 to SSO.OOO F-SSO,001 to S'.OO.OOO C-5'.00,001 to 51,000,000 S-Mor« If- : :00
T"va'nS"co<i««i J-sl5,846 or !••• K-si5,<ioi to >5i,86o L-i5o,66i to sioo.ooo s-sico,:.; ...oao
'Smm Col. CI t D31 N-S250,001 to SSOO.OOO CHS5QO,001 to SI. 000. 000 P-Hora "lan SI. 000. 000
1 Valaa Hatbod Codaat Q-Appralsal R-Coat (raal c^tjta only) 3"Aaaa»iBant T-Caeh/Ka^ ^.;
(Saa Col. C2) U-BooH Valoa v^othar w-Sitlaatad
225
FINANCIAL DISCLOSURE REPORT (cont'd)
\mmm of P«r*an lUporrlag
Vanaskie, Thomas I.
Oat* oC ]
11/18/93
VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (ia<uci«<
pait of Report.)
VII.
Investments
m
my
retirement
account
are self-dj.rectedt
bu^^are not
owned individually
by
me
or my
spouse.
"An
accpunt statement, f
or the
month
ending
September 30,
1993
... the
most
current
statement' in my possession.
is- attached
hereto
as
Exh
ibit
"A".
The
account statement ' identifies
the
investments
in my retirement, account as,
i)XlO/31/93._"t":-'
-" - • . ^-i ^ x; z^ ■ I . .1
. .., -
^_
--■'-■■' - ■ :.-.
IX. CERTIFICATION. .- .r . ■ - - -^ ■
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisoiy Committee on
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory
function in any btigation during the period covered by this report in which I, my spouse, or my minor or dependent children
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including infurmaiion pertaining to my spouse and minor or dependent children,
if any) is accurate, true, and complete to the best of my knowledge and belief, and thai any information not reported was
withheld because it met applicable statutory provisions pi.rmitiing non-disclosure.
I further certify thai earned income from outside (.t^n'.'vnLni and honoraria and the acceptance of gifts which have been
reported are in compliance vnth the provisions of 5 L > i \ jpo. 7, § 501 et. seq., 5 U.S.C. § 7353 and Judicial Cooferenoe
re<>ulations.
Signature l_
Date
NOTE: ANY LNDIVTDUAL WHO KNOWINGLY
.\1AY BE SUBJECT TO CIVIL ANT) CRLMINAL S A
■^ I L FULLY FALSIFIES OR FAILS TO RLE THIS REPORT
■ NS (5 U.S.C.A. APP. 6, § 104, AND 18 US C. !) UX)1.)
RLING '^STRUCnONS:
Mail signed original and 3 additional copies u<
Judicial Ethics Committee
Administrative Office of the
United States Courts
Washington, DC 20544
226
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Real estate owned ia lln^^ted to our pejrsoaaljresidence located,
at 102 Possun Hay, Clarks Green, Pennsylvania.
The real estate mortgage payable is secured by our residence
and is payable to Greentree Mortgage C6npanyt,^7600 ^omas Parkway,
Mount Laurel, New Jersey.
The secured note is payable to Mellon Bank, N.A., Scranton,
Pennsylvania .
The note payable to banks-unsecured, is payable to PNC Bank,
Scranton, Pennsylvania. " 1-
The notes payable to others is payable to' William Eynon,
Dunmore, Pennsylvania. •- - • . t,!_
Accounts and bills due are as follows:
Prinerica Mastercard - $ 4,900.00
Citibank VISA - "T. Ibt . 00 '' "" - .r-., -
Sears - 500.00
Bon-Ton - 100.00
J.C. Penney - 100.00
The chattel mortgage is the note secured by an autcnnobilc and
payable to PMC Bank of Scranton, Pennsylvania.
230
UNITED STATES SENATE QUESTIONNAIRE FOR JUDICIAL NOMINEES
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Helen Georgena Roberts Berrigan (nickname: Ginger)
2. Address: Place of residence and office:
Home: 4319 Hamilton Street, New Orleans, La. 70118
Office: Suite 2150 Energy Centre, 1100 Poydras Street,
New Orleans, Louisiana, 70163-2150
3. Date and place of birth:
April 15, 1948, New Rochelle, New York
4. Marital Status; (include maiden name and husband's name.
List spouse's occupation, employer's name and business
address)
Married: Joseph E. Berrigan, Jr. My husband is an
attorney and the senior partner of the law fiirm of
Berrigan, Litchfield, Schonekas, Mann & Clement, Suite
2150 Energy Centre, 1100 Poydras Street, New Orleans,
La. 70163-2150.
5. Education; List each college and law school you have
attended, including dates of attendance, degrees
received, and dates degrees were granted.
University of Wisconsin, 1965-69, B.A. 1969 in Psychology;
American University, Washington, D.C., 1970-71, M.A.
1971 in Communications;
Louisiana State University, 1974-77, J.D. 1977 in Law.
6. Employment Record; List (by year) all business or
professional corporations, companies, firms or other
enterprises, partnerships, institutions and organi-
zations, nonprofit or otherwise, including firms, with
which you were connected as an officer, director,
partner, proprietor, or employee since graduation from
college.
1978-present - Associate attorney, law firm of Gravel
Brady & Berrigan, New Orleans, Louisiana;
1990-1993 - Contract attorney with the Jefferson Parish
Indigent Defender Board, Gretna, Louisiana;
231
Page 2
6. Employment Record;
1984-present - Of counsel to the law firm of Berrigan,
Litchfield, Schonekas, Mann & Clement, New Orleans,
Louisiana;
1977-1978 - Staff attorney, Governor's Pardon, Parole and
Rehabilitation Commission, Baton Rouge, Louisiana;
1975-1977 - Law clerk, Louisiana Department of
Corrections;
1973-1974 - Assistant to Charles Evers, civil rights
leader and Mayor of Fayette, Mississippi;
1972-1973 - Legislative aide (part-time, unpaid),
Senator Joseph E. Biden, D-Delaware, United States
Senate, Washington D.C.;
1971-1972 - Staff researcher (part-time, unpaid) , Senator
Harold E. Hughes, D-Iowa, United States Senate,
Washington D.C.;
1971 - Graduate assistant. Department of Communications,
American University, Washington, D.C.;
1970 - Administrative secretary, Boston College, Chestnut
Hill, Massachusetts;
1969 - Staff Assistant, University of Wisconsin Extension
Madison, Wisconsin.
7. Military Service: Have you had any military service? No.
8. Honors and Awards; List any scholarships, fellowships,
honorary degrees, and honorary society memberships that
you believe would be of interest to the Committee.
None.
9. Bar Associations; List all bar associations, legal or
judicial related committees or conferences of which you
are or have been a member and give the titles and dates
of any offices which you have held in such groups. -
1977-present - Louisiana State Bar Association; 1983,
Chairman of the Criminal Law Section.
1986-present - Bar Association, Federal Fifth circuit.
232
Page 3
9 . Bar Associations:
1985-present - Louisiana. Association of Criminal Defense
Lawyers; 1988-1993, Board of Directors;
1990, Defense Attorneys Assistance
Committee.
1987-present - Louisiana Sentencing Commission, Member
(appointed by Governor) .
1988-1990 - New Orleans Association for Women
Attorneys; Board Member, 1988-1989;
Program Chairman, 1988-1989.
1986-1988 - Louisiana Capital Defense Project,
President.
10. Other Memberships: List all organizations to which you
belong that are active in lobbying before public bodies.
Please list all other organizations to which you belong.
1989-present - Committee of 21, President of the Board,
1990-92;
1989-present - American Civil Liberties Union of
Louisiana, President, 1989-1993;
Vice-President, 1993-present ;
1990-present - Forum for Equality, Member of the Steering
Committee, 1991-present ; Chairman-Elect,
1992-1993; Chairman, 1993-present;
1990-present - Amistad Research Center, Tulane
University, Member of the Board.
11. Court Admission;
List all courts in which you have been admitted to
practice, with dates of admission and lapses if any such
membership lapsed. Please explain the reason for any
lapse of membership. Give the same information for
administrative bodies which require special admission to
practice.
Court Date of Admission
1. Louisiana Supreme Court 10/05/77
233
Page 4
11.
12,
Court Admission:
2. United States District Court
Western District of Louisiana
3. United States District Court
Middle District of Louisiana
4. United States District Court
Eastern District of Louisiana
5. United States Court of Appeals
Fifth Circuit
6. United States Army Court of
Military Review
7. United States Court of
Military Appeals
10/15/79
11/26/79
1/26/83
10/01/81
10/06/81
7/31/80
Published Writings: List the titles, publishers, and
dates of books, articles, reports, or other published
material you have written or edited. Please supply one
copy of all published material not readily available to
the Committee. Also, please supply a copy of all
speeches by you on issues involving constitutional law or
legal policy. If there were press reports about the
speech, and they are readily available to you, please
supply them.
Louisiana Criminal Trial Practice. 2nd Edition, Harrison
Publishing Company, Norcross, Georgia, 1992;
Louisiana Criminal Trial Practice Formulary, co-compiled
with Julian R. Murray, Jr., Harrison Publishing Company,
Norcross, Georgia, 1990;
Louisiana Criminal Trial Practice, co-author with Julian
R. Murray, Jr. , Harrison Piiblishing Company, Norcross,
Georgia, 1984;
"The Purpose of Punishment", Blueprint for Social
Justice. Loyola University Institute for Human Relations,
1987;
"Edward Livingston and American Penology" 37 Louisiana
Law Review 1037 (1977).
I have frequently been a speaker in continuing legal
education seminars sponsored by the Louisiana State
234
Page 5
University Law Center, Tulane University Law School,
Loyola University Law School, the Louisiana Judicial
College, the Louisiana State Bar Association and the
Louisiana Association for Criminal Defense Lawyers. In
connection with my civic and community activity, I have
been a speaker for several groups such as the Junior
League of New Orleans and the YWCA, and have also
appeared on various programs on public television.
13. Health; What is the present state of your health? List
the date of your last physical examination.
My health is good. My last general exam: April, 1993.
14. Judicial Office: State (chronologically) any judicial
offices you have held, whether such position was elected
or appointed, and a description of the jurisdiction of
each such court.
I have not previously held judicial office.
15. Citations: If you are or have been a judge, provide:
(1) citations for the ten most significant opinions you
have written; (2) a short summary of and citations for
all appellate opinions where your decisions were reversed
or where your judgment was affirmed with significant
criticism of your substantive or procedural rulings; and
(3) citations for significant opinions on federal or
state constitutional issues, together with the citation
to appellate court rulings on such opinions. If any of
the opinions listed were not officially reported, please
provide copies of the opinions.
Not applicable.
16. Public Office: State (chronologically) any public
offices you have held, other than judicial offices,
including the terms of service and whether such positions
were elected or appointed. State (chronologically) any
unsuccessful candidacies for elective public office.
In 1987, I was appointed by the Governor of Louisiana to
serve on the Louisiana Sentencing Commission^ The
commission was created by the Louisiana Legislature to
promulgate sentencing guidelines in felony cases. I
still sei-ve on that Commission, having been reappointed
twice by successive governors. Republican and Democrat.
I have never been a candidate for elective office.
235
Page 6
17. Legal Career:
Describe chronologically your law practice and
experience after graduation from law school including:
1. whether you served as clerk to a judge:
I have not served as a clerk to a judge.
2. whether you practiced alone:
I have not practiced alone.
3. The dates, names, addresses of law firms or
offices, companies or governmental agencies
with which you have been connected and the
nature of your connection with each;
After graduating from law school in May, 1977,
I worked for a year as a Staff Attorney for the
Governor's Pardon, Parole and Rehabilitation
Commission. This Commission was created to
study the state corrections system and make
legislative and administrative recommendations
for improvement. The Commission no longer exists.
In October, 1978, I joined the law firm of
Gravel, Roy & Burnes as an associate attorney.
I have remained with that law firm to the
present time. The partnership and title of the
firm have changed several times and is most
recently Gravel, Brady & Berrigan.
There is a New Orleans branch where I am the
sole attorney. The address is Suite 2150,
Energy Centre, 1100 Poydras Street, New
Orleans, Louisiana 70163-2150.
Since approximately 1985, I have been "of
counsel" to the law firm of Berrigan,
Litchfield, Schonekas, Mann & Clement, Suite
2150, 1100 Poydras Street, New Orleans, La.
In January, 1991, I contracted with the
Jefferson Parish Indigent Defender Board to
handle appeals of indigent criminal defendants.
This contract expired in June, 1993. The
address is 217 Derbigny Street, Gretna,
Louisiana 70053.
236
Page 7
B. 1. What has been the general character of your law
practice, dividing it into periods with dates:
The general character of my practice is and has
been criminal defense. This includes pretrial
and trial proceedings, federal and state,
misdemeanor and felony. It also includes post-
trial work, criminal appeals, post-conviction
writs, and administrative matters such as
pardon, parole, prison transfers, and
professional licensing as it is affected by
criminal conviction. I have handled
approximately 550 cases in my career.
B. 2. Describe your typical former clients, and
mention the areas, if any, in which you have .
specialized.
My "typical" client is a person who is
criminally accused or convicted, is indigent or
borderline indigent, usually with poor
educational and work skills and frequently of a
minority group. However, I have also handled
so-called white collar cases which involved
businessmen who are well-educated, skilled and
until that point reasonably successful.
As indicated above, my area of specialty is
criminal defense.
C. 1. Did you appear in court frequently,
occasionally, or not at all? If the frequency
of your appearances in court varied, describe
each such variance, giving dates.
I appear in court on a regular basis. This
includes pretrial proceedings, trial work and
post-conviction court appearances. I also
appear before administrative bodies such as the
Pardon Board, Parole Board or licensing boards.
2. What percentage of these appearances was in:
1. Federal courts: approximately 20% ;
2. State courts of record: approximately 80% ;
3. Other courts: Minimal.
237
Page 8
C. 3. What percentage of your litigation was:
1. Civil; ,2. Criminal;
Virtually all of my practice has been in
criminal law. Some aspects of that litigation
however use civil rather than criminal
procedural rules; such as habeas corpus and
administrative proceedings such as pardon,
parole and professional licensing. Early in my
career, I handled a number of civil cases which
were relatively simple - uncontested divorces,
separations, curatorships . On two occasions, I
did handle contested personal injury suits and
on one occasion, contested anti-trust litigation.
4. State the number of cases in courts of record
you tried to verdict or judgment (rather than
settled) , indicating whether you were sole
counsel, chief counsel, or associate counsel.
I have been involved in 3 3 cases that were
tried to verdict. I was sole counsel in 11 of
them; chief counsel in 6 more and associate
counsel in the remaining 16.
5. What percentage of these trials was:
a) jury; b) non-jury;
31 of the 3 3 we;re jury trials.
18 . Litigation:
Describe the ten most significant litigated matters which
you personally handled. Give the citations, if the cases
were reported, and the docket nvaaber and date if
unreported. Give a capsule summary of the substance of
each case. Identify the party or parties whom you
represented; describe in detail the nature of your
participation in the litigation and the final disposition
of the case. Also state as to each case:
a. the date of representation;
b. the name of the court and the name of the judge
or judges before whom the case was litigated; and,
c. the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel
for each of the other parties.
238
Page 9
18 . Litigation:
1, United States v. Otto Passman, 78-CR-30013, United
States District Court, Western District of Louisiana,
Monroe Division
Congressman Otto Passman was indicted on charges of
accepting illegal gratuities from Korean businessman/
lobbyist Tongsun Park in connection with Korean purchases
of Louisiana rice. He was also charged with income tax
evasion. The charges were brought in Washington D.C. by
the Public Integrity Section of the United States
Department of Justice. The case was subsequently
transferred to Louisiana for trial.
Our law firm represented Passman. I joined the firm a
few months prior to trial and was immediately assigned to
work on the case. I prepared extensive and detailed
pretrial motions and also researched a great deal on
Louisiana's rice industry, the structure and functioning
of the Korean government and the history of trade
between Louisiana and Korea. The trial itself lasted
seven weeks. I prepared witness packets for use in
direct and cross-examination and researched and drafted
memorandums on legal issues that arose during trial. I
also drafted the opening and closing arguments. Passman
was acquitted of all charges.
My senior partner, Camille Gravel, Jr. was Passman's
attorney. His address is 71i Washington Street,
Alexandria, Louisiana 71309; Phone. (318) 487-4501. Lead
counsel for the Department of Justice was David Scott.
There were also a Mr. Silverstein and a Mr. Cannon
assisting him. All were with the Public Integrity Section
of the Department of Justice; (202) 514-1412. The trial
judge was Hon. Earl Veron, now deceased.
2. Schwecrmann v. Edwards, et al. No. 223598, "F", 19th
Judicial District Court, Parish of East Baton Rouge,
State of Louisiana
Schwegmann Giant Super Markets, a New Orleans grocery
store chain, sued the Governor and other Louisiana public
officials to have the state's "Beer Cash Law" declared
unconstitutional. The law, La.R.S. 26:741, prohibits the
extension of credit to beer retailers by wholesalers for
purchases of beer. Schwegmann claimed the statue violated
due process, equal protection, the freedom to contract,
separation of powers and other provisions of the United
States and Louisiana Constitutions.
239
Page 10
2. Schwecmann v. Edwards, et al . No. 223598, "F", 19th
Judicial District Court, Parish of East Baton Rouge,
State of Louisiana
I was appointed by the state Attorney General as a
special assistant attorney general to help defend against
the suit. The suit was filed in early 1978, shortly
after I began practicing law. I did extensive research
into the history of the law which related back to
monopolistic trade practices whereby beer wholesalers
gained control of retail outlets (bars, lounges,
restaurants) through manipulation and control of credit.
I also did in-depth research into marketing and marketing
techniques, competitive and anti-competitive practices,
and the financial structure and nature of the liquor
industry generally and the beer industry in particular.
With respect to the law, I also did thorough research
into anti-trust law, regulation of the liquor industry,
the police power, as well as more generic principles of
constitutional and statutoiry law.
I handled much of the pretrial pleadings and some of the
depositions. At a later date, the case went to trial and
the trial was handled by other attorneys. The trial
court found the statute constitutional, as did the state
court of appeals. The Louisiana Supreme Court declined
to hear the case so the lower court judgment stood. The
trial judge was Hon. Doug Moreau, 19th Judicial District
Court. The opposing counsel were Michael Fontham and
Richard Stanley, with Stone, Pigman, Walther, Wittmann &
Hutchinson, 546 Carondelet Street, New Orleans, La.
70130; phone (504) 581-3200. The state was represented
at trial and subsequently by David Stewart, Ropes and
Gray, 1001 Pennsylvania Avenue N.W. , Suite 1200-South,
Washington D.C. 20004; phone (202) 626-3900.
3. State of Louisiana v. Joev McDaniel. 410 So. 2d 754
(La. 1982).
This was my first jury trial as sole counsel. My client
JOEY McDANIEL was charged in Grant Parish, 35th Judicial
District Court, and in Rapides Parish, 9th Judicial
District Court. The charges in Rapides parish were
resolved by a guilty plea to a less serious offense..
We went to trial on the charge in Grant Parish. I
objected to the jury instruction regarding the definition
of "reasonable doubt". This instruction had been
commonly used for years throughout the state. The judge
overruled my objection and the instruction was given.
240
Page 11
State of Louisiana v. Joev McDaniel. 410 So.2d 754
(La. 1982).
My client was convicted as charged. I raised that issue
on appeal and the conviction was reversed on that basis.
It was the first time apparently that this particular
jury instruction had been challenged.
McDaniel became a frequently cited case in subsequent
chal-lenges to other similarly worded jury instructions.
While those instructions were usually upheld and McDaniel
distinguished, the United States Supreme Court finally
struck them down in Cage v. Louisiana. Ill S.Ct. 328 (1990)
The case was tried from February 23, 1981 through
February 26, 1981. The judge at the trial was the Hon.
W.T. McCain who is now deceased. The prosecuting
attorney was Gregory N. Wampler who, unfortunately, is
currently in federal prison. His address is #07929-035,
FPC-El Paso, Post Office Box 16300, El Paso, Texas 79906.
United States v. Edwin W. Edwards. Crim. No. 85-078,
Section E (4) , United States District Court,
Eastern District of Louisiana.
Governor Edwin W. Edwards was indicted along with several
others in the mid 1980 's for alleged fraudulent conduct
in connection with the awarding of so-called
"certificates of need" for construction of privately
owned, for-profit medical facilities.
Our firra was retained by Governor Edwards as co-counsel
in his representation. My role was to research and
prepare pretrial pleadings and memoranda, analyze and
outline pretrial recorded statements by the witnesses,
and prepare direct and cross-examination packets. I also
researched and prepared memoranda on issues that arose
during the trial.
The first trial ended in partial acquittals for soiae
defendants but was deadlocked 11-1 for acquittal as to
the Governor and others. A mistrial was declared. My
role in the second trial was essentially the same as in
the first. This time the Governor and the others were
acquitted of all charges.
The first trial began on September 17, 1985 and ended in
mistrial on December 18, 1985. The second trial began on
March 24, 1986, and ended May 12, 1986.
241
Page 12
United States v. Edwin W. Edwards. Crim. No. 85-078,
Section E (4) , United States District Court,
Eastern District of Louisiana.
The prosecuting attorneys were then United States
Attorney John Volz, and Assistant United States Attorney
Robert Boitmann, United States Attorney's Office, 501
Magazine Street, 2nd Floor, New Orleans, Louisiana 70130;
telephone (504) 589-2929, and Pauline F. Hardin, now in
private practice at Jones, Walker Law Firm, 201 St.
Charles Avenue, New Orleans, Louisiana 70170; telephone
(504) 582-8110. The co-counsel in both trials was
Camille F. Gravel, Jr., 711 Washington Street,
Alexandria, La. 71309, telephone (318) 487-4501.
Chief counsel in the first trial was James Neal, Neal &
Harwell, Suite 2000, First Union Tower, 150 4th Avenue
North, Nashville, Tennessee 37219; telephone (615) 244-
1713. Chief counsel in the second trial was Michael S.
Fawer, 2311 Cedar Springs, Suite 250, Dallas, Texas
75201; telephone (214) 953-1000. The judge in both
trials was Hon. Marcel Livaudais, Jr.
State V. Bedford Dovle Ruff. 504 So. 2d 72 (La. App.
2nd Cir. 1987)
Our client was BEDFORD DOYLE RUFF who was charged with
second degree murder. Our defense was justifiable
homicide.
My senior partner, Camille Gravel, Jr., and I were co-
counsel. I handled the pretrial investigation which
involved lengthy interviews with numerous people familiar
with the individuals involved, their relationships, as
well as witnesses who were at or nearby when the incident
took place.
We waived a jury and elected to be tried by the judge.
My senior partner and I shared the examination of
witnesses. The trial judge found RUFF guilty as charged
of second degree murder and sentenced him to mandatory
life imprisonment.
I handled the appeal and raised three issues. One was
that RUFF should be acquitted because we had established
justifiable homicide. My second issue was that RUFF
should be acquitted of murder because the mitigating
factors of the lesser crime of manslaughter were present.
My third issue was that we were entitled to a new trial
242
Page 13
State V. Bedford Doyle Ruff. 504 So. 2d 72
(La. App. 2nd Cir. 1987)
because the state had withheld exculpatory evidence
contained in civil depositions with respect to the latter
two issues, (assuming our claim of justifiable homicide
was rejected) . The appellate court acquitted RUFF of
murder on the basis that the mitigating facts of
manslaughter had been proved, then remanded the case for
a new trial on the withholding of the exculpatory evidence.
The case was tried from March 3, 1986 through March 7,
1986. The prosecutor was and still is the District
Attorney, William Coenen, 108 Courthouse Square,
Rayville, La. 71269, telephone (318) 728-3227. The trial
judge was Hon. Glen W. Strong. My senior partner,
Camille Gravel, Jr. is at 711 Washington Street,
Alexandria, La. 71309, Phone (318) 487-4501.
State of Louisiana v. Peter Hawist. #36,835
11th Judicial District Court, Parish of Sabine.
Our client, PETER HAWIST, was a soldier charged with
first degree murder, carrying a possible death penalty if
convicted. My senior partner, Camille Gravel, Jr. was
lead counsel. I handled the majority of pretrial
preparation with a young associate in the firm, Charles
G. Gravel.
During the trial itself, my senior partner and I shared
the examination of witnesses and I also provided material
to my partner for his examinations. The case was
prosecuted by the District Attorney himself, Don Burkett.
Prior to trial, the District Attorney was adamant about
trying the case as first degree murder with exposure to
the death penalty. Our defense was justifiable homicide.
Towards the end of our presentation of the defense, the
District Attorney disclosed to us that we had created a
reasonable doubt in his mind and he could not in good
conscience proceed with the prosecution. He then excused
the jury and dismissed all charges against our client.
The case was tried from March 28, 1988 until Mareh 31,
1988 when charges were dismissed. The District Attorney
was and still is Don Burkett whose address is Post Office
Box 1557, Many, Louisiana, 71449. His telephone number
is (318) 256-6246. The judge was the Hon. John Pickett,
Jr. The address for my partner, Camille Gravel, is 711
Washington Street, Alexandria, La. 71309, (318) 487-501.
243
Page 14
State ex rel Lawrence v. Smith. 571 So. 2d 133 (La. 1990)
In 1978 DAVID LAWRENCE -was convicted of second degree
murder. His conviction and sentence were affirmed on
appeal. I was not involved in any way in his initial
trial or appeal.
I was retained by LAWRENCE approximately ten years later
to determine if he had any grounds to challenge his
conviction. After a review of the evidence, I concluded
LAWRENCE had been wrongfully convicted of murder when in
fact the lesser crime of manslaughter had been committed.
I filed an application for post-conviction relief on the
above grounds. It was denied by the trial judge. I then
applied for a supervisory writ to the Louisiana Supreme
Court which was granted. After briefing and argument, the
court ruled 6-1 that LAWRENCE be acquitted of murder and
convicted instead of manslaughter.
The case was remanded for re-sentencing,
re-sentenced to 21 years imprisonment.
LAWRENCE was
The prosecutor in the post-conviction proceedings was Asa
Skinner, Assistant District Attorney, Vernon Parish
Courthouse, Leesville, Louisiana 71446; telephone (318)
239-2008. The trial level judge was the Hon. Roy B.
Tuck, Jr.
State of Louisiana v. Rov Bennett. 610 So. 2d 120 (La. 1992]
Roy Bennett was convicted of a crime. That conviction was
overturned by the Court of Appeals, rehearing was denied,
and the State's timely application to the Louisiana
Supreme Court was rejected. Bennett was set for retrial
over a year after the Court of Appeals denied rehearing.
The defendant contended however that the one year statute
of limitations had run and he could not be retried. The
trial court denied the motion, trial proceeded and
Bennett was again convicted. On appeal, the appellate
court reversed the conviction, agreeing with the
defendant that prescription had run. Rehearing by the
State was denied.
I was contacted then by the District Attorney's Office
and retained to prepare an application for a supervisory
writ on behalf of the prosecution to the Louisiana
Supreme Court.
244
Page 15
8. State of Louisiana v. Roy Bfennett, 610 So. 2d 120 (La. 1992)
In Louisiana, the State Jias one year from the grant of a
new trial to then coitunence that trial . The issue was
when that one year period began, whether it began with
the reversal on appeal, or upon the denial of rehearing,
or upon the denial of the application for supervisory writs.
The .issue involved detailed research into the
constitutional and legislative history of criminal
appellate jurisdiction and procedure in Louisiana, and a
comparative analysis with civil appellate procedure. I
used the legislative and constitutional history of
criminal appellate jurisdiction to argue that the
legislature intended the rules of prescription to be the
same for criminal and civil jurisdiction and that the
failure to expressly say so statutorily was a legislative
oversight.
The Louisiana Supreme Court accepted the case, reversed
the Court of Appeal, and held that the statute of
limitation in criminal cases commenced with the denial of
any application for supervisory review.
The District Attorney was and is William Tilley, the
Assistant District Attorney is Asa Skinner, Vernon
Parish Courthouse, Leesville, Louisiana 71446; (318) 239-
2008. Defense counsel was Richard Burnes, 711 Washington
Street, Alexandria, Louisiana 71301; (318) 445-0462.
9. State of Louisiana v. Michael Wilson. No. 91-4535
24th Judicial District Court, Parish of Jefferson
Michael Wilson is an indigent indicted for first degree
murder in Jefferson Parish. Attorney MARK MOLTING from
the Jefferson Parish Indigent Defender Board was
appointed to represent him. Over the subseguent months,
NOLTING met frequently with Wilson and filed numerous
pretrial motions.
Ten months after NOLTING was appointed, the trial judge
summarily dismissed NOLTING as Wilson's attorney, and
appointed another lawyer outside of the Indigent Defender
Board. No reasons were given. NOLTING and Wilson
objected to the dismissal.
As an appellate attorney on contract with the Jefferson
Parish Indigent Defender Board, I filed an Application
for Writ of Certiorari with the Fifth Circuit Court of
Appeal (No. 92-K-614) . I argued that the dismissal of
245
Page 16
State of Louisiana v. Michael Wilson. No. 91-4535
24th Judicial District Court, Parish of Jefferson
NOLTING breached Wilson's right to counsel, and set a
dangerous precedent in undermining the independence of
appointed counsel. I cited American Bar Association
standards. United States Supreme Court jurisprudence and
detailed case law from other states where other trial
courts had tried to likewise "fire" public defenders with
whom they were displeased.
The appellate granted the writ, reversed the trial judge
and reinstated NOLTING as Wilson's attorney.
The attorney who had been appointed by the trial judge to
replace NOLTING then filed an Application for Writ of
Certiorari with the Louisiana Supreme Court (No. 92-KK-
2434). The District Attorney's office then joined in the
Application for Writ. The Supreme Court summarily
granted the writ, set aside the ruling of the appellate
court and reinstated the trial court's dismissal of
NOLTING as Wilson's attorney. I immediately filed an
Application for Rehearing, presenting essentially the
same factual analysis and legal argument that I had
presented to the appellate court. The rehearing was
granted and by a 6-1 decision the Court reversed itself
and reinstated the ruling of the 5th Circuit upholding
NOLTING 's continued representation of Michael Wilson.
The prosecuting attorney was Dorothy A. Pendergast,
Assistant District Attorney, 5th floor. Courthouse
Annex, Gretna, La. 70053; phone (504) 368-1020. The
attorney whom the trial judge tried to appoint to replace
NOLTING was Camilo K. Salas, III, 201 St. Charles Avenue,
Suite 3500, New Orleans, La. 70170; (504) 582-1500. The
trial judge was the Hon. Ernest V. Richards, IV.
10. State ex rel Mims v. Butler. 601 So. 2d 649 (La. 1992)
Ira Joe Mims was convicted on the same day in 1978 of two
felonies based on separate incidents. In 1985, he was
convicted of another felony and was then adjudicated a
third time felony offender and sentenced to an enhanced
punishment under Louisiana's habitual Offender Law. On
post-conviction, Mims contended that under Louisiana's
Law, a person's offender status is enhanced only if each
offense in seguence occurred after conviction for the
earlier offense. The trial court had allowed the third
offender adjudication even though Mims' second felony
offense occurred before the was convicted of the first.
246
Page 17
10. State ex rel Mims v. Butler. 601 So. 2d 649 (La. 1992)
The appellate court affirmed and so did the Louisiana
Supreme Court on initial hearing.
On rehearing, a number of other entities became involved
as Amicus Curiae, including the 24th Judicial District
Indigent Defender Board which I represented. The case
required an analysis of the history of Louisiana's
Habitual Offender Law including its various statutory
amendments and their interplay with the jurisprudence
interpreting the statutes. The goal was to determine
legislative intent in light of the ambiguous language of
the statue itself and the statutory and jurisprudential
history.
Rehearing was granted and the lower court's decisions
were reversed. The court found that the statute did
require the sequential offense-conviction-offense before
a person could be adjudicated an habitual offender.
Elizabeth Cole and Terry Albritton of the Tulane Law
Clinic, Tulane University, New Orleans, Louisiana 70118,
Telephone number (504) 865-5153, represented Mims. The
state was represented by Catherine Estopinal, Assistant
District Attorney, First Judicial District Court,
Shreveport, Louisiana 71101, Telephone number (318) 226-
6826. Amicus Briefs were filed by Lennie Perez, 729
Royal Street, Baton Rouge, Louisiana 70802, Telephone
number (504) 387-1287, on behalf of the 19th Judicial
District Public Defender Office; G. Paul Marx, Post
Office Box 3622, Lafayette, Louisiana 70502, Telephone
number (318) 232-9345, on behalf of the 15th Judicial
District Public Defender Office; John LaVern, 326 Pujo
Street, Suite 505, Lake Charles, Louisiana 70602,
Telephone number (318) 436-1718, of the 14th Judicial
District Public Defender Office; Paul Adams, Jr., 1645
Nicholson Drive, Baton Rouge, Louisiana 70802-8143,
Telephone number (504) 343-0171, of the Louisiana
District Attorney's Association; and, Robert Glass, 228
Lafayette Street, New Orleans, Louisiana 70130, Telephone
number (504) 581-9065, on behalf of the Louisiana
Association of Criminal Defense Lawyers. The trial judge
was Hon. Carl Stewart, First Judicial District Cour-t.
247
Page 18
19 . Legal Activities:
Describe the most significant legal activities you have
pursued, including significant litigation which did not
progress to trial or legal matters that did not involve
litigation. Describe the nature of your participation in
this question, please omit any information protected by
the attorney-client privilege (unless the privilege has
been ^waived. )
Probably my most significant legal activity outside of
litigation is the researching and annual updating of my
book, Louisiana Criminal Trial Practice. This is a one
volume, nearly 600 page, compilation of the statutory and
jurisprudential law of criminal procedure in this state,
from arrest, through pretrial and trial matters,
including all evidentiary issues, and ending with post-
conviction relief and administrative release. It is a
book widely used throughout the state by prosecutors and
judges as well as defense lawyers.
I have also had a large pardon and parole practice where
I represent prisoners hoping to obtain early release
through these administrative remedies. It requires not
only a thorough knowledge of the original facts of the
offense (which in many cases occurred many years before)
but total familiarity with the individual prison's
programs, disciplinary policies and housing arrangements
and total familiarity with the inmate's daily activities,
in work, recreation and optional programs such as
athletics, education and vocational training.
248
II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC)
List sources, amounts" and dates of all anticipated
receipts from deferred income arrangements, stock, options
uncompleted contracts and other future benefits which you
expect to derive from previous business relationships,
professional services, firm memberships, former employers,
clients, or customers. Please describe the arrangements
you have made to be compensated in the future for any
financial or business interest.
I have an Individual Retirement Account (IRA) which I
contributed to over a period of several years. The current
balance is approximately $23,100. I also have a more
recent Retirement Plan Account which I have contributed to
over more recent years. The current worth of that is
approximately $42,200.00. Those are intended to provide
income beginning after the age of sixty.
Explain how you will resolve any potential conflict of
interest, including the procedure you will follow in
determining these areas of concern. Identify the
categories of litigation and financial arrangements that
are likely to present potential conf licts-of-interests
during your initial service in the position to which you
have been nominated.
I would fully disclose to all parties in the case of any
facts that might constitute a conflict. I would refer the
conflict issue to another judge if it cannot be resolved
with parties. The initial conflicts of interest I might
have would be if I had previously been the attorney for a
particular litigant. I don't anticipate any conflicts
regarding continuing financial arrangments as I will have
none.
Do you have any plans, commitments, or agreements to
pursue outside employment, with or without compensation,
during your service with the court?
No.
List sources and amounts of all income received during the
calendar year, including all salaries, fees, dividends,
interest gifts, rents, royalties, patents, honoraria, and
other items exceeding $500.00 or more (If you prefer to do
so, copies of the financial disclosure report, reguired by
the Ethics in Government Act of 1978, may be substituted
here. )
See Financial Disclosure Report.
249
Page 2
Please complete the attached financial net worth statement
in detail (Add schedules as called for) .
Financial Net Worth Statement is attached with schedules.
Have you ever held a position or played a role in a
political campaign? If so, please identify the
particulars of the campaign, including the candidates,
dates -of the campaign, your title and responsibilities.
I have participated in a number of political campaigns over
the past 25 years, virtually all at the basic volunteer
level - canvassing, phone banking, putting up signs.
These included candidates for governor (Mississippi and
Louisiana), Louisiana State Legislature, Louisiana judicial
seats, and local mayor, city council and school board
races in New Orleans. I held no position and had no title.
The only campaign in which I had a title was as Finance
Chair in a local race for Criminal District Court Judge on
behalf of a candidate who was defeated.
250
FINANCIAL DISCLOSURE REPORT
Report Raqolrvd by tiie ItJilca
nmtorm Act of 1989, Pub. L. Mo.
101-194, Rovaabu 30, 1989
(5 O.S.C.A. App. 6. StlOl-112)
1. FotvoD (teportlng (Last nana, first, alddle Initial)
2. Coort or Organlxatioa _
UoiVd S+c^^s I>>st^'cV Cout-V
3. Data of Report
Nov. \'^,
4. Title (Axticlv III judges Indicate active or
•an lor status; Magistrate judges Indicate
full- or psrt-tina)
^. Report Type (chock approprlata type)
_l^ Nonlnatlon. Date MOM. VS . V*^*^^
Final
f Initial
Annnal
6. Raportlng Parlod
-^3 preserrA
7. Chaal>ata or office Addraaa
Hoc ^oit<^ra.i SWet-V
Ne.vj:> Cirlto-'^'Sj Le>o"ib'>.«».n€^. -loifcB-A'So
e. On the baala of tha Inforaatlon contaload In tbla Report, it
la. In ay opinion, in coapllanca wltb applicable laifa aod
requlatlona
Reviewing Officer slgnatore
IMPORTANT NOTES: The instructions accontpartying this form must be followed. Complete all parts,
checking the NONE box for each section where you liave no reportable Inrormation. Sign on last page.
POSITIONS. (Reporting individual only, see pp. 7-8 of Instructions.)
POSITION NAME OF ORGANIZATION/ENTITY
I NONE (Ho reportable positions)
af Coonse\
I. AGREEMENTS. (Reporting individual only; see p. 8-9 of Instructions.)
DATE PARTIES AND TERMS
Berriotxn Daj>;r,\«y.y. Li^KCicU Olsein|Schot.e:t<w<
^grrigtxn Ll^xi^flOti, Sc-ViongUro.S HourMn <»■ Clgin»i«»A-
LQui^iQ.n<x. RjataOQ-W^ ^C- r.rinMnQ,i E>e.-CcnSf LQ.U)vje.rS
Ccov,Vi»,«td .x+IdU.)
X
NONE (Ro reportable agreeoents)
II. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
DATE SOURCE AND TYPE GROSS INCOME
(Honoraria only) (yours, not spouse's)
D
NONE (Ho reportable non-lnveetment Incoee)
Cr<xxelj Broujg gjvf^ E)e-rriQQ.r> CigCja.\ ■vees\ $ (Q/. 3<X> .
^Ber^^^go■o^Do■nle■l«.or^,UVc^Ae.^i (M«a->. Sct^Qx-Vrtu * VAann $ (S^ a.^onr»e.j
?ii»rviiyt.r« V-i-tcWifielA^ Sc-Vior>e.Vtv^j Hann » Cltwen'V $ fe.'S o.Horneju
S
251
FINANCIAL DISCLOSURE REPORT (cont'd)
NaB« of Person Reporting
Helen G. B-
em gc
Date of Iteport
MOV.. \«1, \«\qi
V. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment.
(Indades those to spouse and dependent children; use the parenthetlcals "(S)' and '(Dp* to Indicate rrportaMe
relmbureements and gifls received by spouse and dependent children, respectively. See pp.13-15 of Inatmctioiu.)
z\
SOURCE DESCRIPTION
NONE (No auch reportable ralmburaeMnta or gifts)
EXEMPT
'. OTHER GIFTS, (includes those to spouse and dependent children; use the parenthedcab '(S)' aod "(DC)" to
Indicate other gills received by spouse and dependent children, respectively. See pp.l5-li of InMrncUont.)
H
SOURCE
NONE (No auch reportable qlfta)
DESCRIPTION
VALUE
EXEKPT
DESCRIPTION
I. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person
for llaMilty by using the parenthetical '(S)' for separate liability of spouse, '(])' For Joint liability of
individual and spouse, and '(DC)' for liability of a dependent child. See pp.lfr-lS oflnstructlons.)
3
CREDITOR .
NONE (He raportabla llabllltlea)
responsible
reporting
VALUE CODE*
^OQ.^lor^Q■^ Hor^ggqe G^rporo. hoofs'^ rea.1 e.&->To.A€ >»or-^9n.9e
Qr..>,-.ra.» Reii.tf^ViQ.1 Hor>-ga-gg^S') re£x.\ et-t-a.t^ y>. .-^ r-t-ga.<^<e
K
_tSL
H.
VXUn CODUI } • (is, 000 or l*ae K - JlJ.OOl to SSO.OOO L - SSO.OOl to $100,000 M • ll««,001 t6 t2M<bM
a > SlSO.OOl to SSOO.OOO O - $500,001 to $1,000,000 7 ■ Hor* Uun $1,000,000
252
I
FINANCIAL DISCLOSURE REPORT (cont'd)
RUB* of Person Roportlng
Data of Report
Mom. V«\, \'^'^2>
yil. INVESTMENTS and TRUSTS - income, value, transactions, (indades those of spoii«e
and dependent children; see pp. 18-27 of lnslructk>n.s.)
(InelMitis trust aaseta)
tttiiemft «rh*r« •peiie«bl«, ovnftr of
tS« «s«*t BY uaififf.U* pdr«nth«U.csl
C.
Orooa valiM
• t «nd oC
D.
Traauotloiu 4nrln« t«portla« period
loo IttdiviaDJil And apog8«, '(Sl^ for
••ft«£at« ownaraUp by apousay ^(DC)"
tor ovnanhlp By aap^ndant child.
I^lao* *(X1* «(t«£ each «««<1
•XMtpt trto prior dlacloaur*.
(11
(il
,Typ«
'Si?::
ti)
(j-p)
(J)
MtboS,
If not •¥— yt troB dl«clo«ar« |
hlL,
Heath-
Mr
(1)
'548'
(j-f)
(4)
(CSi
Jdjoiltj et
NONE (Ho reportablA
locoaa, aaaata, or
tranaart.lnnal
e
/
ET
r\
P T
^ noi LotJell s*-. o«.+ 8a.
&o.t«r> RouOf . La..r«n+<».l Cori<ie
D
r en^
\<
VJ
* Ca.%1a.Ae IJCLWra.1 G-evS
A
d.v.jend
3
T
3
Cl4->Corp', CoTvirnori
A
A'vier^i
J
T
4
<iw>Aenel
l<
T
s
Tr-,'- ConVinCn^l Corpora. Ke<»i
C
Ji.>'.<^e'<)
K
T
6
C
dlOficrc
D
T
T. Rowe Price
B
d.M.U^
\<
T
9
MCW Co r pora. V\ort ', OJrn h<\on
A-
cJiMiJtrx
-3
T
" Trees- Hctew &■• RoteerVs
<J(W Jerr^j McCorti Roi)C.r+£
D
Jwi'JcnJ
M
T
t4e»e" & Robtr-Vs Re+x-er^tftV
P'. an% ■
KJtvO Or^eo-ns. La..
B
>n+e>«iy
V<
1
'* (plDrc'jfus Ra~>l^ "f Funis
3
Jw.ie.)
X
1
6a.r.k-, Nev«J Orleans. U».
B
l«+tl«it
V<
T
"V.«'Wer+>( Pioanoat SCroiceS
Pi-tfe<reel (5^
ft
none
\<
T
"l-lber+^ F.n"<vnO«.l Ser^-lCCI
Coorimen C S'i
/V
none
K
T
Mi;y;»Orle.a.nS lA . 4- Plot
e
rtnV
n
a
-
D
ren+-
L
VvJ
We«> firleon'S.VA. M-Plex. fs^
D
rco +
L
VJ
V^OlO C>rleo.ii%. La. '^- PV«*
D
reo+
L
>A)
Vitus OrVeaj.S. U». t a.pVs CS]
t
rcn-*-
L
W
1 Inc3csM/0*ln Ca«Mi Ik-(1,000 or !•■• I'^l.OOl to Sl.JOO C<S2.S01 to S.OOO I>>i>,001 to $13,000
(MM Col. ki t D«l E-jii,oot to ssa.ooo F-iSB.ooi to iioo.oeo o-sioo.ooi to ii, 000,000 etton oim tliQJf'JJf ■
TTOMSii.1 J-}lj;iJ66 or ImI (i.|l!,»6i toh«.*«4 " l.ha.ial to JlM.Mi h-JlM.Ml lo IJSi.JM
IStm col. CI ( D>l H-SISO.OOI to SSOO.OOO O-tSOO.OOl to SI. 00" »«« r-marm tlx> ll.OOO.OOO
(M* Cal. at U—Bok V.loa
k-Coot
It;.! 1
•tato onl)
1 |t-Xaa»a«»qk
5St
ukytUttiat 1
FINANCIAL DISCLOSURE REPORT (cont'd)
253
Name of Pecson Reporting
Dat* of Raport
Mom. W,l'HS3
VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (imiicaie part of Report.)
BoQ.rE> o-(- t>irfo4-DY-1^^ PresiA&r.V Covr>ry.rWee <Jr ^\ .
Prg'SiA.'nt; Vice- Pre.Si<^en-V lP>YnfrigQ.rn Cv m > Li.i,er^g ■S O moo a-f L ft U i s. nJ-WC^
ftfstit-iA o-P D't'ec-Vor-S 'Rmer\fQi-i C>0' \ Li ber-Vne-s Uhiov^
^fr^Vipr, SVfi»ring Co m m lUee ^ C\ncnr- ForuTvi ^or '^'^<3.\\\<^
■j>,^an^A r.1^ DireiL-VDY-_& PVrv^,s+r.A Reseo-«-cVi Ce^rVe.r- .
Pr,n.r-A e-P V^iY-cr ■Ut-.'^ J Ufc-^- fc^ "Hie ^ecoi-cj
R^n.r-A o-f- D>yecAoc3 Sooe-4-M^ of Qroencmn ■», Im- RcQovpnj CSopO. j
IX. CERTIFICATION.
In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Committee on
Judicial Activities, and to the best of my knowledge M the time after reasonable inquiry, I did not perform any adjudicatory
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children
lad a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation.
I certify that all information given above (including information pertaining to my spouse and minor or dependent children,
f any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was
withheld because it met applicable statutory provisions permitting non-disclosure.
I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been
reported are in compliance with the provisions of 5 U.S.C.A app. 7, § 501 et. seq., 5 U.S.C § 7353 and Judidal Conference
regulations.
Si^ature l^\caU^ (^ . ^\.<LW--^^^^^^ Date M^^'^.^-^S
NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIRES OR FAILS TO FILE THIS REPORT
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C.A APP. 6, § 104, AND 18 U.S.C S 1001.)
FILING INSTRUCTIONS:
Mail signed original and 3 additional copies to: Judicial Ethics Committee
Administrative OfBce of the
United States Courts
Washington, DC 20544
254
NET WORTH
PidYidt I coffiplele. cuf rrni finincial nti worth jUtement which ilemizej in detail ill iJjelJ (indue
r'i rca! *it*t»- «»«'Jf''''^- '"J>i». invtiimtnli. »ft<j o(her (in»ncijl hold(ngi) all liabilities (includi'
* ^^p^j ;ajni. and olbe'- financial obligalionj) o( yourjeH, your spouse, and oiher ImmedlaU mei
A^SCTS
CUti 0-1 I*"* «nS '" ft*"**
U.S. C9««<nf •"' jsc\jnort— •<J'S
Unlin»< i*:urttl»*— -«(Jd »£*'»dul»C8)
Aeccu.io eri notrt fttBVibie:
Dui fTOrtl (ti»fiv*i tnd ln»ndl
Doubtful
R«ii »n«t« o»^id tat ►cKtrfi'ifCc)
R<(| «Ul« moitj»|»« f»C»i»«6le
Autoi «n<» <"''•' ?«'*o'<«l property
C*tK v«l««— '•'• InturinCB
0^^«'■ «»»*u— ««mlt«: C I>)
2o ooe
i -o-
l| I07O03
gg<??5
— o —
-0 ~
TerUI •IMM
1
ajNTINCCNT UXaiLITItS
Ax •<^4orv•r, csf^attr or (uinnior
On iMui er cDivtcn
r^rm.tion (or r>Oar(l {near* r«(
Ott\(r t»«<UI dcet
^47 OOP
- O —
3!ooo
AtZOO
aiid^
li9iJ>3t
-o-
-o—
6-
"O"
oo
tfO
1
oo
oo
UABlimES
Noiat paytbit to UnM »»cur»d
Ns(*t »«y(bU lo h»<ilo»— OM^eurwl
Notn payaW* ts r«Ut/««*
Notn par*fat« to erthtr*
Acoournx artd MMt ou*
Unpaid Irtconw Ui
OUvir unpaid Ui ind lnncv««
K«tl *ittt* moctKifn p*v*P<»~«dd
»cA»<Juta iaj
par<bi«
mtitf dtM* — lli/nlit:
— o -
-o —
-o —
ToUi lUbllitlM
Natwortn
Tout fl»blllU»i «nd ^«^ worth
CCNUUL INrORMATIOK
A/* any 4*A«t* pl«3|adl (AOd Kh^
Ul*.>
An you difartdirrt In any Mts or
Usai acoontt'
Ht«« }OU avw tikan banvupiey?
!-
Nd
*6
OO
NO
JJO
255
Financial Net Worth Statement / Schedules;
Listed Securites - Schedule (A) ;
IBM - 393 Shares
Cascade Natural Gas - 3 53 Shares
Citicorp - 320 Shares
Salomon Bros. Fund Inc. - 1081 Shares
T. Rowe Price Growth Stock Fund-1063 Shares
Tri-Continental Corp. - 1210 Shares
Unlisted Securities - Schedule (B) :
Liberty Financial Services, Inc.
New Orleans, Louisiana, 10% Cumulative
Preferred Stock
Liberty Financial Services, Common Stock
Real Estate Owned - Schedule fC) ;
Description
4 319 Hamilton Street
New Orleans, La. (4-Plex)
6515-17 Center Street
New Orleans, La. (double)
Unit 82, Bocage Condo
Baton Rouge, La.
Market Value
$ 240,000.00
$ 120.00.00
$ 57,000.00
$ 50,000.00
2213-15 Gen. Taylor St.
New Orleans, La. (4-Plex)
National Mortgage Corp.
Colorado Blvd. , Denver,
$
19,551.
,75
$
9,354.
,50
$
11,120,
.00
$
15,134.
.00
$
21,598,
.31
$
30.250.
.00
$107,003.56
$ 38,825.30
S 19.260.00
$ 58,085.30
Mortgage
- 0 -
- 0 -
$ 24,000.00
$ 41,569.00
, 1355 South
Colo. 80233
$ 80,000.00
$ 85,241.00
1708-10 N. Broad Street
New Orleans, La. (4-Plex)
American Residential Mortgage Corp.
P.O. Box 85804, San Diego, Ca. 92186-5804
1632 Esplanade Ave. $ 120,000.00 $132,213.00
New Orleans, La. (8 Apartments)
Equitable Real Estate, 5775 E. Peachtree
Dunworay Road, Suite 400, Atlanta, Ga. 303
Total:
$ 677,000.00
$283,023.00
256
Financial Net Worth Statement / Schedules:
Other Assets - Schedule (D) :
(1) TTEES - Helen G. Roberts u/w
Jerry McCord Roberts Art. 6th
as amended (trust established
.by deceased mother) $120,414.00
(2) Helen G. Roberts Retirement Plan Account:
Liberty Bank & Trust Co. ,
New Orleans, La. $ 24,519.00
Dreyfus Family of Funds $ 18,914.00
IRA Hibernia National Bank
New Orleans, La.
$ 23,103.00
(3) Joseph E. Berrigan, Jr. (husband)
Profit Sharing Plan - Prudential
Securities, $230. OOP. 00
$416,950.00
257
III. GENERAL (PUBLIC)
1. An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find some time to participate in
serving the disadvantaged". Describe what you have done to
fulfill these responsibilities, listing specific instances
and the amount of time devoted to each.
During my first years of practicing law, I was based in
Alexandria, Louisiana. The system there for providing
counsel to indigents was to appoint attorneys from the
local bar on a rotating basis. While we were authorized
to submit a bill for reimbursement on our services, I
never did and instead did the work for free. I estimate I
was involved in about 100 cases on that basis, both
criminal and civil.
Since moving to New Orleans in 1984, I have continued to
provide pro bono or near pro bono services to many people
on a regular basis. I estimate that 30-40% of my legal
practice and time has been in the type of work. These
encompass all ranges of primarily criminal representation
including a number of death penalty cases at the trial and
appellate levels. I was also on contract to handle
criminal appeals for indigents in the neighboring Jefferson
Parish from 1990 until June 1993. Although my contract
ended in June, I have continued to represent about a dozen
of the individuals on a pro bono basis as well.
In connection with my community work, I have participated
in various fundraising efforts and speaking programs to
assist the disadvantaged, primarily the poor and various
minority groups. For example, a couple of years ago I was
YWCA Role Model and in that capacity spoke to young women
in our urban public schools. As another example, last year
I co-chaired a major fundraiser on behalf of Lazarus House,
a residential facility affiliated with the New Orleans
Catholic Archdiocese which houses AIDS victims who are no
longer able to live independently. I have also participated
in prison programs and workshops to hopefully assist
inmates in rehabilitating themselves.
2. The American Bar Association's Commentary to its Code of
Judicial Conduct states that it is inappropriate for a
judge to hold membership in any organization that
invidiously discriminates on the basis of race, sex, or
religion. Do you currently belong or have belonged to any
organization which discriminates, through either formal
membership requirements or the practical implementation of
membership policies?
No.
258
Page 2
3. Is there a selection commission in your jurisdiction to
recommend candidates for nomination to the federal courts?
If so, did it recommend your nomination?
I know of no Selection Commission in my jurisdiction which
recommends candidates.
Please describe your experience in the entire judicial
selection process, from beginning to end (including the
circumstances which led to your nomination and interviews
in which you participated) .
After the election of President Clinton, my two senior law
partners recommended me for a federal judgeship to
Senators Breaux and Johnston.
I also obtained recommendations from members of th6 legal
community, political organizations, labor and business
leaders and minority representatives.
Subsequent to being recommended by the two senators, I
filled out various forms and was interviewed by officials
in the Justice Department, the F.B.I, and the American Bar
Association.
4. Has anyone involved in the process of selecting you as a
judicial nominee discussed with you any specific case,
legal issue or question in a manner that could reasonably
be interpreted as asking how you would rule on such case,
issue, or questions. If so, please explain fully.
No.
5. Please discuss your views on the following criticism
involving "judicial activism."
Under our system of separation of powers, the legislature
has the responsibility of promulgating the general laws and
policies affecting society as a whole. The judiciary is a
separate branch of government with an entirely different
responsibility. The courts are mandated to resolve
particular conflicts between individual parties who have a
specific genuine dispute. The parties should clearly be
entitled to a legal resolution of their problem -at that
time or else the court should decline the case. The
courts are to apply the constitution and the general law to
that specific dispute emd decide which party is entitled
to prevail. The decision amd remedy should be limited to
those particular parties. The reasoning behind the decision
should likewise be narrowly confined to the type of
conflict set forth in the case.
5.
259
Page 3
The courts do have a unique responsibility of determining
the constitutionality of statutes and laws, as promulgated
and as applied. However even in those situations, the
court's role should generally be confined to that basic
decision, leaving the legislature and executive branch to
respond with whatever affirmative steps need be taken to
restore constitionality.
260
AFFIDAVIT
lation provido^ in this statement is, to 1
I. ^^^^ f V-^'-^^^^^fy— , do swear that the
information providod in this statement is, to the best of my
knowledge, true and accurate.
(Date) (NJme)
^v^Vl.
(Notary)
ARTHUR S. MANN. Ill
Public. Parish of Orlaaru. SM* of U.
■ hMd tar VU.
261
I. BIOGRAPHICAL INFORMATION (PUBLIC)
1. Full name (include any former names used.)
Tucker Lee Melancon
2. Address: List current place of residence and office address (es).
Residence 604 North Monroe Street
Marksville, Louisiana 71351
Office P. 0. Box 211
Marksville, Louisiana 71351
3. Date and place of birth.
February 3, 1946
Bryan, Texas
4. Marital status (include maiden name of wife, or husband's name).
List spouse's occupation, oiployer's name and business address (es).
Katherine Ascher Melancon.
Hcroemaker.
5. Education: List each college and law school you have attended,
including dates of attendance, degrees received, and dates degrees
were granted.
Louisiana State University, Baton Rouge, Louisiana,
1964-1968, Bachelor of Science, May 25, 1968
Tulane University School of Law, New Orleans, Louisiana,
1970-1973, Juris Doctor, May 11, 1973
Summer schools attended:
Louisiana State University at Alexandria, Alexandria,
Louisiana, 1965 and 1966
Loyola University, New Orleans, Louisiana, 1969
Louisiana State University School of Law, Baton Rouge,
Louisiana, 1971
I also attended Loyola University School of Law, Night Division,
New Orleans, Louisiana, for a brief period in the fall of 1968. I
resigned due to the demands of my teaching profession.
6. Employment Record: List (by year) all business or professional
corporations, coir^^nies, firms, or other enterprises, partnerships,
institutions and organizations, nonprofit or otherwise, including
firms, with which you were connected as an officer, director,
partner, proprietor, or atployee since graduation from college.
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262
1968-1969 Science/Physical EducatiOTi Teacher
Jefferson Parish School Board
Gretna, Louisisuna
1973-1975 Associate
Knoll & Knoll
Attorneys at Law
Marksville, Louisiana
1975-1983 Member, Board of Directors, Secretary-Treasurer,
Avoyelles Holdirg Company, Inc., dA>/a,
Brieirwaod Motel
Bunkie, Louisiana
1975-1983 Solo law practice
Marksville, Louisiana
1976-1987 Manber, Beard of Directors, Secretary-Treasurer
Mar -Dan Enterprises, Ltd., d/b/a, Melancon Funeral
Home cind Melancon Mcnument Cotpany
Bunkie, Loiiisiana
1976-1979 Manber, Board of Directors
W. Belmont Townsend Memorial Foundation,
Inc. (ncHi profit corporation), d/b/a,
Epps House
Bunkie, Louisicina
1978-1980 Member, Board of Directors, Secretary-Treasurer,
E-Z Shop of Alexandria, Inc., d/b/a E-Z
Shop
Marksville, Louisiana
1980-1981 Manber, Board of Directors, Secretary-Treasurer,
Son of Son, Inc., d/b/a, Mike Anderson's Seafood
Restaurant
Mcinsura, Louisieina
1984-present Managing Partner
Melcincon & Rabalais
Attorneys at law
Marksville, Louisiana
1985-1987 Member, Board of Directors, Secretary-Treasurer,
Laco Premium Plan, Inc., d/b/a, Laoo,
Mcurksville, Louisiana
1987-1988 Manber, Board of Directors, Secretary-Treasurer,
Southeast CentreLl Louis icuia Premium Fincince
Cotipany, d/b/a, SBCLA
Marksville, Louisicina
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263
1989-1992 Matter, Advisory Beard
Catalyst Old River Hydroelectric Partnership
Vidalia, Louisiana
1992-present Mannber, Board of Directors
Catalyst VidaLLia Corporation
New York, New York
7. Military Service; Have you had aiiy military service? If so,
give partiCTilars , including the dates, branch of service, rank
or rate, serial number and type of disdiarge received.
No.
8. Honors and Awards; List any sdioiarships , fellowships, honorary
degrees, and honorary society menfaerships that you believe would
be of interest to the Ccnmittee-
Not applicable.
9. Bar Associations; List all bar associations, legal or judicial-
related catmiittees or conferences of vAiich you are or have been a
member and give the titles and dates of any offices which you
have held in such groups.
Avoyelles Parish Bar AssociaticKi, President, 1977-1978
Louisiana State Bar Association, House of Delegates,
1973-1975, 1990-present
Bar Association of the Fifth Federal Circuit
Louisicuia Trial Lawyers Associaticsi, President's
Advisory Board, 1979-1980, 1985-1986, 1987-1988,
1990-present
American Trial Lawyers Association
American Inns of Court, Alexandria-Pineville Chapter
American Judicature Society
Louisiana Workers' Conpensatioi Advisory Board, 1990-1991
Ccranittee to Study Backlog in the Ocurts of Appeal,
First and Third Circuits, by aK»intniait of the Louisiana
Supreme Court, 1991
10. Other memberships; List eLll organizaticms to \i^idi you belong
that are active in lobbying before public bodies. Please list all
other organizations to vrtiich you belong.
Louisiana Trial Lawyers Association
Aroericcin Trial Lawyers Association
The Environmental Defense Fund
The National Eagle Scouts Association
The New Orleans Track Club( running club, no facilities, race sponsor)
Louisiana Public Broadcasting
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264
11. Court admissions; List all cxiurts in which you have been admitted
to practice, with dates of admission and lapses if any such
memberships lapsed. Please explain the reason for any lapse of
membership. Give the same infornation for administrative bodies
which require special admission to practice.
Louisiana State Bar, October 5, 1973
United States District Court, Eastern District of Louisiana,
Novenber 13, 1974
United States Court of Appeals, Fifth Circuit,
July 26, 1979
United States District Court, Middle District of Louisiana,
October 8, 1980
United States District Court, Western District of
Louisiana, September 16, 1985
United States Supreme Court, November 4, 1985
United States District Court, District of
Nevada on a single case basis, petition filed
February 4, 1992
12. Published Writings; List the titles, publishers, and dates of
books, articles, reports, or other published material you have
written or edited. Please supply one copy of all published
material not readily available to the Ccnndttee. Also, please
supply a copy of all speeches by you on issues involving
constitutional law or legal policy. If there were press reports
about the speech, and they are readily available to you, please
supply them.
None.
13. Health: What is the present state of your health? List the date
of your last physical examination.
Excellent. My last physical examination was on May 12, 1992
14. Judicial Office: State (chronologically) any judicial offices you
have held, whether such position was elected or appointed, and a
description of the jurisdiction of each such court.
None.
15. Citations; If you aure or have been a judge, provide; (1) citations
for the ten most significant opinions you have written; (2) a short
sunmary of and citations for all appellate opinions v^iere your
decisions were reversed or where your judgment was affirmed with
significant criticism of your substantive or procedural rulings;
and (3) citations for significant opinions on federal or state
constitutional issues, together with the citation to appellate
court rulings on such opinions. If any of the opinions listed
were not officially reported, please provide copies of the
opinions .
Not applicable.
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265
16. Public Office: State (chrcxxslogically) amy public offices you
have held, other than judicial offices, including the terms of
service and whether sadti positions ware elected or appointed.
State (chronologicailly) euiy unsuccessful candidacies for
elective public offioe.
I vras appointed by the Bunkie, Louisiana, City Council to serve on
the BunJcie Airport Authority from 1974 to 1978.
I was appointed by the Assistant Secretary of Labor of the State of
Louisiana to serve on the Louisiana Workers' Condensation Advisory
Board from 1990 to 1991.
17 . Legeil Career;
a. Describe chronologically your law practice and e^qierience
aft-^T graduaticMi from law school including:
1. whether you served eis clerk to a judge, euid if so,
the name of the ju^, the court, and the dates
of the period you were a clerk;
Not applicable.
2. whether you practiced alone, and if so, the addresses
and dates;
May 15, 1975 to August 1980.
116 East Mark Street
Marksville, Louisiana 71351
3. the dates, names and addresses of law firms or offices,
companies or governmental agencies with vrfiich you have
been connected, cind the nature of your connection with
each;
August 1, 1973-
May 14, 1975 Associate
Knoll & Knoll
Attorneys at Law
P. 0. Box 426
Marksville, Louisiana 71351
Gaieral civil practice, including plaintiffs'
personal injury emd vrorkers' ccn^jensation
litigation, reed, estate, domsstic
relations , successions (probate), cind
oonmercial practice.
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266
May 15, 1975-
Deceitiber 31, 1983
Solo Practitioner
116 East Mark Street
Marksville, Louisiana 71351
(associate Rodney M. Rabalais
hired in 1980)
General civil and criminal practice,
including plaintiffs' personal injury
and workers' compensation litigation,
felony and misdemeanor criminal defense,
(1975-1980), real estate, dcroestic
relations, successions (probate), and
CCTimercial practice-
January 1, 1984-
present
Managing Partner
Melancon & Rabalais
Attorneys at Law
Marksville, Louisiana, 71351
General civil practice, plaintiff and defense
with cin emphasis on personal injury and
workers' compensation litigation, and also
including conmercial litigation, corporate
law, doTvestic relations, successions
(probate), and real estate.
1, What has been the general character of your law practice,
dividing it into periods with dates if its character
has changed over the years?
While I still handle plaintiffs' personal injury cases, successions
(probate), and a number of corporate clients, over the last two
years my practice has become more defense oriented. (Currently
the majority of my time is devoted to defense work for Guarantee
Mutual Life Insurance Company; the Louisiana Sheriff's
Risk Management Program; Imperial Fire & Casualty Insurance
Company; the State of Louisiana, Department of Transportation
& Development; and the Avoyelles Parish Sheriff's Department.
My prior practice is listed in my response to question 17(a)(3).
2. Describe your typical former clients, and mention the
areas, if any, in which you have specialized.
The Avoyelles Parish Sheriff's Department (The Law
Enforcement District of the Parish of Avoyelles,
State of Louisiana), general counsel
Louisiana Sheriff's Risk Management Program, liability
defense
Guarantee Mutual Life Insurance Company, workers'
compensation defense
-6-
267
Imperial Fire & Casualty Insurance Conpany, liability
defense
State of Louisiana, D^artment of Transportation
& Development and D^artment of Public
Safety and Corrections, lieibility defense
c. 1. Did you appear in court frequently, occcisioncilly, or not
at all? If the frequency of your appearances in court
varied, describe eacii such variance, giving dates.
I have appeared regularly in court. However, in the leist
two to three years, I have appeared somewhat less
frequently because of the changing nature of my
practice; the increasing amount of defense vrork;
the ranoval of workers' condensation ceises
from state district courts to the
Office of Workers' Con^pensation
Administration; and the hiring of em eissociate.
2. What percentage of these a^jecurances was in:
(a) federal courts;
1%
(b) state courts of record;
94%
(c) other courts.
Louisiana Office of Workers' Conpensation Administration,
workers' compensation trials and related natters — 5%.
3. What percentage of your litigation was:
(a) civil;
99%
(b) crimincd.
1%
4. State the number of cases in courts of record you tried
to verdict or judgmait (rather than settled), indicating
whether you were sole counsel, chief counsel, or
associate counsel.
300 to 400 cases as sole counsel, approximately
20 cases as aissociate counsel.
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268
What percentage of these trials was:
(a) jury;
(b) non-jury.
99%
18. Litigation: Describe the ten most significant litigated matters
which you personally handled. Give the citations, if the cases
were reported, and the docket number and date if unreported. Give
a capsule summary of the substance of each case. Identify the party
or parties whom you represented; describe in detail the nature of
your participation in the litigation and the final disposition of
the case. Also state as to each case:
(a) the date of representation;
(b) the name of the court and the name of the
judge or judges before v^cxn the case was
litigated; and
(c) the individual name, addresses, and telephone
numbers of co-counsel and of principal counsel
for each of the other parties.
The cases I selected in response to this question
are significant only to the parties I represented and
to me. However, they are representative of my
practice and of my litigation experience. A summary of the
information requested for each case, in reverse chronological order,
is attached hereto as Appendix I.
19. Legal Activities: Describe the most significant legal activities
you have pursued, including significant litigation which did not
progress to trial or legal matters that did not involve litigation.
Describe the nature of your participation in this question, please
omit any information protected by the attorney-client privilege
(unless the privilege has been waived).
In 1990 I was appointed to the Louisiana Workers' Condensation
Advisory Board by the Assistant Secretary of Labor. The Board
was set up pursuant to Louisiana Revised Statute 23:1291B. (14)
and consisted of five members. The Board's role was to
assist the Director of the Office of Workers' Compensation
Administration in the development and implementation of
policies and procedures for the Workers' Compensation
Administrative Hearing Process that was removed from the
state district courts in 1990.
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269
A sunmary of four cases I handled that were
settled after litigation was instituted, but prior to
trial, in chronologiccil order, is attached hereto as
Appendix II.
II. FINANCIAL DATA AND CDNFLICr OF INTEREST (PUBLIC)
List all sources, amounts cind dates of all anticipated receipts from
deferred income arrangements, stock, options, uncompleted contracts
and other future baief its which you expect to derive fron previous
business relationships, professional services, firm memberships,
former anployers, clients, or customers. Please describe the
arrangements you have made to be compensated in the future for
any financial or business interest.
a. I intend to dissolve my law partnership,
Melancon & Rabalais, with my law
partner, Rodney M. Rabalais, in strict adherence to
and compliance with Cannons of the Code of Conduct for
United States Judges and all rules and regulations
of the JudicicLl Conference of the United States and of the
American Bar Association that relate thereto. The
details of the agreement to dissolve the partnership
have not yet been determined, but I would expect to
receive periodic ccnpensation for the sale of my
interest in the partnership.
b. As part of my firm's fee for representing the plaintiffs
in a wrongful death action in 1989 I received New York
Life Insurance Conpany annuity policy no. FP200509,
annuitant's no. 1A10530 providing the following
annuity benefits stream: Annuity payment of
$2,193.35 per month beginning 01/02/2001, payable
while I am living, or until at least 240 such
payments have be&n made.
c. Through inheriteince and investment, I have royeilty
and working interest ownership in gas and oil wells
operated by Campac Eighty-Two Limited Partnership,
Jeems Bayou Production Corporation, Brammer
Engineering, and Fina that will produce future
income.
Explain how you will resolve any potential conflict of interest,
including the procedure you will follow in determining these
areas of concern. Identify the categories of litigation and
financial arrangements that are likely to present potential
conflicts-of -interest during your initial service in the
position to which you have been nominated.
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270
I will not sit on or participate in amy case in which
my law partner, Rodney M. Rabalais, or anyone
associated with my law partner has an interest.
I will not sit on any case involving a former
client for the period prescribed by the
Code of Conduct for United States
Judges. I will not sit on any cases involving
a person, corporation, or partnership with
vi*iich I have a business or financial interest.
By aiploying the foregoing procedure,
I do not anticipate any conflicts of interest
during my initial service on the bench. Should a
conflict arise I will follow the guidelines of the
Code of Conduct for United States Judges.
3. Do you have any plans, cornutments, or agreenents to pursue
outside employment, with or without compensation, during
your service with the court? If so, explain.
No.
4. List sources and amounts of all inccne received during the
calendar year preceding your nanination and for the current
calendar year, including all salaries, fees, dividends,
interest, gifts, rents, royalties, patents, honoreiria,
and other itenns exceeding $500 or more (if you prefer to
do so, copies of financial disclosure report, required
by the Ethics in Government Act of 1978, may be substituted
here ) .
My Financial Disclosure Report is attached hereto.
5. Please ccmplete the attached financial net vorth statanent in
detail (Add schedules as called for).
My Financial Statement is attached hereto.
6. Have you ever held a position or played a role in a political
campaign? If so, please identify the particulars of the
campaign, including the candidate, dates of the campaign,
your title and responsibilites.
Yes.
1992 State wide Co-Chair, Louisiana Democratic Party
"Victory Fund '92";
1990 Fifth Congressional District of Louisiana
Ctoordinator, Senator J. Bennett Johnston's
U. S. Senate re-election campaign;
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271
1986 District coordinator. Congressman Jc*in Breaux's
U. S. Senate Campaign;
1984 Eighth Congressional District of Louisiana,
co-coordinator for Mondeile/Ferrciro ticket;
1984 Eighth Congressional District of Louisiana
coordinator for Senator Gary Hart
Since 1985 in my capacity as Democratic National Ccnniitteenan , I have
made appearances with or on b^iailf of numerous Danocratic candidates
for national, state, and local office.
III. GaiERAL (POBLIC)
1. An ethical consideration under Canon 2 of the American Bar
Association's Code of Professional Responsibility calls for
"every lawyer, regardless of professional prominence or
professional workload, to find scsne time to participate in
serving the disadvantaged." Describe what you have done to
fulfill these responsibilites, listing specific instances
and the amount of time devoted to each.
Due to the nature of my firm's practice and the size of the
city and parish (county) which we serve, pro bcxio legad. work is
regularly provided to pec^le who cstfinot afford to retain an
attorney on a walk in basis. My firm and I eilso participate
in a program sponsored by Acadiana Legal Service Corporaticxi,
formerly Central Louisiana Legal Services, Iik:. in
providing legal services for people who cemnot aif ford to
retain an attorney in civil cases at a nominal hourly
rate of $25.00 for work performed out of court and $35.00
for court aRjearamces with a maximum fee of $250.00 per case.
Prior to establishment of an indigent defaider systan
for criminal defendants in Avoyelles Parish, Louisiana,
I voluntarily participated in the court sponsored
indigent defender program. The amount of time devoted
to pro bono and Acadian Legal Services varies, but would
average 4 to 6 hours per month.
2. The American Bar Association's Conmentary to its Code of Judicial
Conduct states that it is inappropriate for a judge to hold
manbership in any organization that invidiously discriminates
on the basis of race, sex, or religicm. Do you currently
belong, or have you belonged, to any organization v*iich
discriminates — through either formal membership requiranents
or the practical implonentation of manfaership policies? If
so, list, with dates of manbership. What you have done to
try to change these policies?
No.
3. Is there a selection commission in your jxirisdiction to recommend
candidates for nomination to the federal courts? If so, did it
recatinend your nomination? Please describe your experience in
the entire judicial selection process, from beginning to end
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272
(including the circumstances which led to your nomination and
interviews in which you participated) .
There is no selection ccnmission for Louisiana. I met with
Senator John Breaux and Senator J. Bennett Jc*inston. I also spoke
with Congressmen William Jefferson, Billy Tauzin, Cleo Fields,
Jiimiy Hays, and Governor Edwin Edwards. I was contacted by the
Clinton Administration, filled out various forms, interviewed at
the Etepartment of Justice, interviewed by an agent of the Federal
Bureau of Investigation and interviewed by a representative of
the American Bar Association.
4. Has anyone involved in the process of selecting you as a judicial
ncminee discussed with you any specific case, legal issue or
question in a tianner that could reasonably be interpreted as
asking how you would rule on such case, issue, or question?
If so, please explain fully.
No.
5. Please discuss your views on the following criticism involving
"judicial activism."
The role of the Federal judiciary within the Federal government,
and within society generally, has beccme the subject of increasing
controversy in recent years. It has become the target of both
popular and academic criticism that alleges that the judicial
branch has usurped many of the prorogativos(sic) of other branches
and levels of government.
Sane of the characteristics of this "judicial activism" have been said
to include:
a. A tendency by the judiciary toward problem-solution rather
than grievance-resolution;
A tendency by the judiciciry to ^nploy the individual
plaintiff as a vehicle for the imposition of far-
reaching orders extending to broad classes of
individuals;
A tendency by the judiciary to impose broad, affirmative
duties upon governments and society;
d. A tendency by the judiciary toward loosening jurisdictional
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273
requirsnents sudi as standing and ripeness; and
e. A tendency by the judiciary to inpose itself upon other
institutions in the manner of em administrator with
continuing oversight responsibilities.
The United States Constitution's establishment of three
separate and co-equeil brauiches of government is the cornerstone
of our Republic. If the Judicial Brainch is to fulfill its
constitutional role, I believe traditioneil jurisdictional
requiranents such eis stemding and ripeness must be adhered to.
While the Judicial Breinch heis the duty to ensure that the
actions of the Legislative and Executive Branches meet
constitutional standards, I believe the proper role of the
Judiciary is to resolve the dispute of the parties before
the Court in a manner so that the decision eiffects, to the
extent possible, only the parties. That is not to say, with
the canplexities of human society, situations do not eirise
where in reaching a resolution of the dispute between the
parties a court's decision will not have far-readiing effects.
That a decision may have feir-reaching effects should not deter
the Court from resolving the dispute of the parties before it,
if jurisdictional requirements are met. In resolving the dispute
between the parties the doctrine of Stare Decisis should be
followed vrtien ^pliceLble.
My e^qjerience eis a lawyer in dealing with oourts with
continuing oversight responsibilites has been limited, but has
led me to believe that such procedure should be used sparingly
emd only as a last resort. Care must be taken to assure that
the overseeing court is not usurping administrative or legislative
power. Rather than assisting in resolving disputes and
encouraging settlanent, my personal experience has been that
additional litigation has resulted, attorney's fees and related
e^qpenses are increased, and disputes that could and should be
resolved by parties are not.
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274
APPENDIX II
CASE #2
NAME OF CASE:
Caxol Ann Lachney Turner, et ail vs. United States Fidelity & Guarantee
Insurance Canpany, et al
CX)URr AND CASE DOCKET NO. :
Twelfth Judicial District Court of LouisicUia
Suit #87-U31-A
United States District Court
Western District of Louisiana
Alexandria Division
Suit #87-0441
PERIOD OF REPRESENTATION;
October 15, 1986 to March 23, 1989
PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION;
Carol Ann Lachney Turner, individually and as duly appointed Natural Tutrix
of her minor children, Tanisha Sheree Turner, Nacmi Anganette Turner, Jason
Edvgard Turner & Hillary Scott Turner, and Scdarina Turner Deville, sole
counsel
NAME, ADDRESS AtP TELEPHONE NUMBER OF COUNSEL FOR EACH OTHER MAJOR PARTY;
Leunry A. Stewart
Stafford, Stevrart & Potter
P.O. Box 1711
Alexandria, LA 71309
(318) 487-4910
Attorney for United States Fidelity & Guarcuity Caipany
Madison C. Moseley
Blue, Williams & Buckley
3421 North Causeway Boulevard
9th Floor
Metairie, LA 70002
(504) 831-4091
Attorney for Northfield Insureince Company
* There were several other counsel for other defendants, but those listed
above were the attorneys for the major defendants.
-2-
275
APPENDIX II
CASE #2 - PAGE 2
SUMMARY OF THE CASE;
This wrongful death action arose out of an accident that occurred on
October I, 1986. My clients' husband and father was killed when he drove a
truck into the side of cin 18 wheeler truck-trailer that was straddling the
road after becoming stuck on the shoulder of the road while attempting to
nake a U turn. The deceased's truck was struck from the recir by a
Volkswagen, which resulted in the death of the driver and severe injury to
a passenger. The two cases were consolidated for trial purposes. There
was a serious question eibout the defendants' liability because of the
status of the truck driver, enployee or independent contractor. Several
days prior to trieil, my clients' claims were settled by structvared
settlaient and cash with a total value of $587,500.00.
-3-
276
APPENDIX II
CASE #3
NAME OF CASE;
Mathilda Gaspard Prevot, individxially and as Natural Tutrix of the Minor,
Julie Ann Prevot, and Mary Elizabeth Prevot, as Natural Tutrix of the
Minor, Sarah M. Lee Prevot vs. Government Einployee's Insurance Cotpany
COURT AND CASE DOCKET NO. :
Twelfth Judicial District Court of Louisiana
Suit #87-14628-A
PERIOD OF REPRESENTATION;
October 1, 1987 to April 1, 1989
PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION;
Mathilda Gaspard Prevot, individually, amd as Natural Tutrix of the minor,
Julie Ann Prevot, sole counsel
NAME, ADDRESS AND TELEPHONE NUMBER OF COUNSEL FOR EACH OTHER PARTY;
Nelson M. Lee
P.O. Box 88
Bunkie, LA 71322
(318) 346-2364
Attorney for Mary Elizabeth Cecil Prevot, as Natural Tutrix for the minor,
Sarah M. Lee Prevot
Russell L. Potter
Stafford, Stewart & Potter
P.O. Box 1711
Alexandria, LA 71309
(318) 487-4910
Attorney for Government Employees Insurance Conpany
SUMMARY OF THE CASE;
This wrongful death action arose out of the death of my clients' husband
eind father and two other men in a single car accident that occurred on
August 30, 1987. No witnesses to the accident could identify which of the
three men was driving the vehicle at the time of the accident. Conflicting
claims were made by the heirs of each of the three men. Separate suits
filed by the three men's heirs were consolidated for trial. Several days
prior to trial, my clients' claims were settled by structured settlement
and cash with a total value of $400,000.00.
277
APPENDIX II
CASE #4
NAME OF CASE;
James J. Ponthier vs. Bill Belt, in his Capacity as duly Elected Sheriff of
Avoyelles Parish, Louisiana
COURT AND CASE DOCKET NO.:
Twelfth Judicial District Court of Louisiana
Suit #90-5111-8
PERIOD OF REPRESENTATION;
NovOTber 2, 1989 to November 30, 1991
PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION;
James J. Ponthier and Phyllis Ponthier - sole counsel
NAME, ADDRESS AND TELEPHONE NUMBER OF COUNSEL FOR EACH OTHER MAJOR PARTY;
Donald C. Brown
Woodley, Williams, Fenet, Palmer, Boudreaux & Norman
P.O. Drawer EE
Lake Charles, LA 70602-3731
(318) 433-6328
Attorney for Bill Belt & Louisiana Sheriff's Risk Management Program
Allen T. Usry
Usry & Weeks
P.O. Box 6645
Metairie, LA 70002
(504) 833-4600
Attorney for Bill Belt & Louisiana Sheriff's Risk Management Program
SUMMARY OF THE CASE;
This personal injury ccise curose as a result of the escape of three inmates
frati the Avoyelles Parish Jail in Marksville, Louisicina, and the encounter
that plaintiff, his wife and children had with the inmates at plaintiff's
home on the night of the escape. As a result of the encounter, plaintiff
suffered psychiatric/psychological damages due to a pre-existing
psychological condition. The Ccise was settled several days before the
trial for the sum of $130,000.00. After the conclusion of this case, I was
retained as attorney for the Avoyelles Parish Sheriff's Department and the
Louisiana Sheriff's Risk Management Program.
-5-
278
FINANCIAL DISCLOSURE REPORT
Report Required by t>.e T'ir.:zs
Relorm Act of 1985, Pub. 1. No
101-194. November 3?, 1?=5
(S u s.c-A. Aup. €. ioi-::i
Person Sei>orti.r.o i L-^s" r.aine, first , middle in it;, a
MELANCON, TUCKER L.
4. Title lArticie III judges indicate active or
senior status ,- Magistrate judges indicate
full- or part-time)
NOMINEE-ARTICLE III JUDGE
7. Chambers or Office Address
ROOM 201, FEDERAL BUILDING
2 01 JACKSON STREET
MONROE, LOUISIANA 71201
2, Cc-rz or Organization
USDC FOR W.DIST OF LA- MONROE
5 Report Type (check appropriate type)
•/ Nomination, Date ll/ie/93
^ :.-.itial Annual Final
Daze of =»=orc
D 11/19/93
6 - Reporting Pericd
1/1/92-11/19/913
On ;he basis of the information contained in this Report, i;
is, in my opinion, in compliance with applicable laws and
regulations
Reviewing Officer Signature
IMPORTANT NOTES: The inslructions accompanying ihis form must be followed. Complete all parts,
checking the NONE box for each section where you have no reportable information. Sign on last page.
I. POSITIONS. (Reporting individual only; see pp. 7-8 oflnstructions.)
n
POSITION
NONE (No reportable positions)
MANAGING PARTNER
TRUSTEE
CONSULTANT
NAME OF ORGANIZATION /ENTITY
MELANCON & RABALAIS. ATTORNEYS AT LAW
MELANCON & RABALAIS PEN & PROF SHARING TRUST
KEROTEST MANUFACTURING CORPORATION
II. AGREEMENTS. (Reporting individual only, see pp. 8-9 of instructions.)
DATE PARTIES AND TERMS
Q
NONE (No reportable agreements)
III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.)
DATE
{Honoraria only)
n
SOURCE AND TYPE
NONE (No reportable non- investment income)
GROSS INCOME
(yours , nc: spouse" s)
1992 MELANCON & RABALAIS. ATTORNEYS AT LAW-NET BUSINESS INCOME $ 141711.00
1993 MELANCON U RABALAIS. ATTORNEYS AT LAW-GROSS BUSINESS INCOME $ 246500.00
19 92 CATALYST OT.D RIVER HYDRO ELEC LTD PTN-BOARD OF ADVISOR FEES $ 2500.00
1992/93 CATALYST VTDALIA CORPORATION -BOARD OF DIRECTORS FEES $ 17000.00
19 92 MARATHON OIL COMPANY - OIL ROYALTY $ 578^,00
279
FINANCIAL STATEMENT
NETT WLKi'H
NC3VQ1BER 1, 1993
Provide a complete, cnricnt financial net wonh sutement which itemizes In detail
all assets (including HanV- accounts, real estate, securities, tnsts, investments, and other financial
holdings) all liabilities Ondnding debts, mongages, loans, and other financial obligations) of
yourself, your spouse, and other Immediate memben of your household.
ASSETS
UABlUnES
Cub oa band and in banb
25
000
00
Nolea pa/able to baab-aaeurcd
VS. Cevusfflcnt Meuridt*—adi
(cbedal*
Lined Keuritia— add jchcduli
16
931
33
Notn payabl* Is relatives
35
858
2
1 Unlittcd iceuritici-add achedul*
55
693
16
Nolu payaUa ts elhea
Ascoonu and neiet xeeivablc;
Aeeennu aod bOlt du«
Dm bom nlativti and ftiandf
Unpaid iaeaaia lax
Due fitsin othcra
Oihtr nnpaid lax and intenat
DoubtfJl
Real aalale mangagca payaUe-add
achedult
191
601
0
Real ealate ewncd-add achedult
390
809
22
Ousel mottgagea aid other Ueiu pay.
abla
Real ctuie niorl<a(e> recchrabl*
Other debu-iioniza:
Aulet and ether peneoa! property
202
900
00
Cub value-life iniuraiiei
4
716
77
Tnrlivirlial R°HihihiI A 1 1 i»il»,,T»Tigim
0
& Pinfit Sharing A i.i.i.iiiLb & ftmity
300
556
36
113
890
00
Total Sabmtiat
227
459
MXTETldl IllttiLtiibi
J'
NetWoift
883
037
5(
ToUl AtUtM
1.110
4'?fi
94
Teul liabmtist an] net »onh
1,110
496
8-
CO.VnNCENT UABlLinES
GENERAL INFORMATION
As eodarter, comaker or guarantor
81
930
78
Are any aaaeti pledged? (Add ached,
ult.)
No
Ob Icaaet or oon»acU
KriMP.
Are yea deteodant in aey tolu or legal
acdoniT
No
Legal Qiisu
NONE
Hare you ever taba banfavpieyj
No
nrevuion tot Fedeti] Incomt T«
NOTE
OjMr tpeeUl debt
NONE
==
280
TUCKER L. MELANOON & KATHEEUNE ASCHER METANOON
FINANCIAL STATEMENT
NET V«QRTH
November 1, 1993
ASSETS
I. LISTED SECURITIES
1. Fifty (50) shares of Life Insurance Conpany
of Alabama, $5.00 par value, as of
12/10/92 775.00
2. One hundred nine (109) shares of Life
Insurcince Conpany of Alabana, $1.00 par
value, as of 12/10/92 218.00
3. Five hundred ten (510) sheures of American
General Corporation comnon stock 14,988.90
4. 36.7 shares of Janus Twenty Fund, Inc. 949.43
TOTAL VALUE OF LISTED SECURITIES $ 16,931.33
II. UNLISTED SECURITIES
1. Twenty-five (25) shares of Mar-Dan Enterprises,
Ltd., d/b/a, Melancon Funeral Hone & Monument
Company, Bunkie, Louisiana, r^resenting
twenty-five per cent (25%) of the
outstanding stock 50,000.00
2. Fifty- two (52) shares of Mansura Bancshares,
Inc., Mansura, Louisicuia 693.16
3. Ninety (90) shares of Southeast Central
Louisiana Premium Finance (Zcmpany,
Cottonport, Louisicina, representing ten
per cent (10%) of the outstanding stock 5,000.00
TOTAL VALUE OF UNLISTED SECURITIES $ 55,693.16
III. REAL ESTATE OWNED
1. Camp and 4 lots. Second Wcurd,
Avoyelles Parish, Louisiana 15,000.00
2. 62.39 acres, Allen Parish, Louisiana
undivided 33.33% interest 8,318.66
3. 14.25 acres. Union Parish, Louisiana
undivided 33.33% interest 2,375.00
4. 80 acres, Desoto Parish, Louisiana
undivided 6.667% interest 2,134.40
281
5. 50 acres, Desoto Parish, Louisicina
undivided 6.667% interest 1,333.33
6. 40 acres, Desoto Parish, Louisiana
undivided 33.33% interest 5,333.33
7. 80 acres, Desoto Parish, Louisiana
undivided 1.6% interest 512.00
8. 238.5 acres. Red River Parish, Louisicina
undivided 1.2% interest 1,045.00
9. 22.63 acres, Avoyelles Parish, Louisiana
undivided 50% interest 5,657.50
10. Family home located at 604 North Monroe
Marksville, Louisiana 150,000.00
11. Unit #A of the 122 East Mark Street
Condominium, Marksville, Louisiana 100,000.00
12. Condcminium, San Diego, California 99,000.00
13. Lot located in Section 10, T9S,
R5E, St. Martin Parish,
Louisiana 100.00
TOTAL VALUE OF REAL ESTATE OWNED 390,809.22
282
TUCKER L. MELANOON & KATHERINE ASCHER MEEANCON
FINANCIAL STATEMENT
NBI WCKTH
NOVEMBER 1, 1993
LIABILITIES
I. REAL ESTATE MORTGAGES PAYABLE
1. Cottonport Bank, Cenla Branch, Marksville,
Louisiana 62,947.14
2. Great Western Savings, Northridge,
California 18,803.60
3. Hibernia NationeLL Bank, Alexauidria,
Louisiana 93,992.06
4. Future Holder, Betty Lee Circle,
San Diego, California 15,858.27
TOTAL REAL ESTATE MORTGAGES PAJaBLB $ 191,601.07
283
APPENDIX I
CASE #1
NAME OF CASE;
Rachel Littleton Charrier vs. Oak Haven Nxirsing Hone, Inc.
TRIAL COURT AND CASE DOCKET ^P.
Twelfth Judicial District Court of Louisaina, docket #89-3993
CITATION OF CASE IF REPORTED;
Not applicable.
PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION;
Plaintiff, Rachel Littleton Charrier, sole counsel
DATE OR DATES OF TRIAL
March 8, 1991
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable Harold J. Brouillette, Judge, Twelfth Judicial District Court,
Division "B"
NAME, ADDRESS, AND TELEPHONE NO. OF CO-OOUNSEL;
Not applicable.
NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL F(» EACH OTHER PARTY;
Joseph Kutch
P. 0. Box 8028
Pineville, Louisiana 71360
(318) 442-4989
SUMMARY OF THE CASE;
This workers' canpensation claim arose out of a June 8, 1989 accident.
Suit was filed on October 25, 1989, resulting in defendant's insurer
agreeing to pay past due medical travel expenses, statutory penalties, and
attorney's fees. Defendant's insurer continued to pay weekly workers'
compensation cind other benefits due under the Louisiana Workers'
Canpensation Act until it failed to timely pay a charge for physical
therapy services rendered to plaintiff. On January 7, 1991, a Rule to Show
-1-
284
APPENDIX I
CASE #1, PAGE 2
Cause Why Mediceil Expenses Under the Louisiana Workers' Compensation Act
Should Not be Paid, for Peialties, Interest, and Attorney's Fees was filed.
Extensive discx>very was conducted including taking the deposition of the
adjuster hcmdling the claim for the insurer and the deposition of the
branch claims manager. Numerous other discovery requests, including
Subpoena Duces Tecum for interned, documents amd medical records. Request
for Admissions, and Interrogatories, were filed. Defendants, through their
attorney, filed a Motion for Sanctions agadnst me alleging that the sixty
day time period set out in the Louisiana Workers' Compensation Act for
payment of medical expenses after receipt had not elapsed when I filed
plaintiff's Rule. The defendcints cilso filed Exceptions of No Cause of
Action and in the alternative, Prenaturity. In response to defendant's
Motion for Saxictions, I filed an amswer eu»d request for reasonable expenses
eind attorney's fees.
FINAL DISPOSITION OF THE CASE;
The trial on the merits of the Rule was conducted on Mcurch 8, 1991.
Judgment was rendered in plaintiff's favor dismissing defendant's
Exceptions, granting judgment in favor of plaintiff for medical expenses
incurred, finding defendants arbitrary and capricious in failing to timely
pay plaintiff's medical expenses and awarding attorney's fees. Defendant's
request for sanctions was denied auid sanctions were greuited in favor of
plaintiff and me against defendants and their attorney for expenses
incurred in defending the Motion for Sanctions.
-2-
285
APPENDIX I
CASE #2
NAME OF CASE;
State of Louisiana, through the Departnient of Health & Human Resources,
Office of Fandly Security in the interest of Codi Chenvert vs. Dale Clark
TRIAL COURr AND CASE DOCKET NO.
Twelfth Judicial District Court of Louisiana, docket #88-2503-A
Court of Appeal, Third Circuit, State of Louisiana, docket #91-6
CITAnON OF CASE IF REPORTED;
Not applicable — not designated for publication.
PARTY I REPRESENTED AND NATURE OF NK PARTICIPATION IN THE LITIGATION;
Defendant, Dale Clark, sole counsel
DATE OR DATES OF TRIAL
October 23, 1990
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable Michael J. Johnson, Judge Twelfth Judicial District Court,
Division "A"
NAME, ADDRESS, AND TELEPHONE NO. OF CO-COUNSEL:
Not applicable.
NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL FOR EACH OTHER PARTY;
Carl Koehler, Staff Attorney
State of Louisiana
900 Murray Street
Alexandria, Louisiana 71301
(318) 487-5202
SUMMARY OF THE CASE;
The State of Louisiana filed suit against the defendant to establish
paternity and support for a minor child allegedly born out of a sexual
relationship with the child's mother. Defendant admitted having one act of
sexual intercourse with the child's mother, but denied that he was the
father of the child, that he had ever acknowledged he was the father of the
child, or that he had offered money to the mother of the child or the
-3-
286
APPENDIX I
CASE #2
grandmother of the child to assist with medical eiqjenses incurred in
connection with the birth of the child. Suit was filed on September 16,
1988. Defendant was ordered to undergo a blood test by the court. The
blood test resulted in a ocmbined paternity index of 104 to 1 eind a
probability of paternity of 99.05% as compared to an untested, unrelated
man of the North American Caucasian population. The depositions of the
mother and severed of her witnesses were taken.
FINAL DISPOSITION OF THE CASE:
After several delays, tricil on the merits was conducted on October 23,
1990. At the close of the State's case, judgment was rendered in favor of
defendant. On Novanber 27, 1990, the State filed a Motion to Appeal the
trial court's decision with the Court of ^^jpeal. Third Circuit of the State
of Louisiana. The Court of Appeal considered the matter without argument
on briefs submitted by the parties and on May 12, 1992, in a percuriam
opinion, upheld the tried court.
-4-
287
APPENDIX I
CASE #3
NAME OF CASE;
Johnny H. Dauzat vs. Mardel Products Co., Inc.
TRIAL COURT AND CASE DOCKET NO.
Twelfth Judicial District Court of Louisiana, docket #90-4258-A
CITATION OF CASE IF REPORTED;
Not applicable.
PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION;
Defendant, Mardel Products Co., Inc., sole counsel
DATE OR DATES OF TRIAL
August 7, 1990
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable William A. Culpepper, retired Judge, Third Circuit Court of
Appeal, sitting ad hoc by appointment of the Louisiaina Supreme Court.
NAME, ADDRESS, AND TELEPHONE NO. OF 00-OOUNSEL:
Not applicable.
NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL FOR EACH OTHER PARTY;
Thomas R. Wilson
P. 0. Drawer 1630
Alexandria, Louisiana 71309-1630
(318)442-8658
SUMMARY OF THE CASE;
This workers' compensation case arose as a result of an alleged back injury
suffered by plaintiff on August 25, 1989, while making a delivery of wood
products for defendant. Plaintiff filed suit on January 24, 1990, after
going through the administrative procedure then in effect with the
Louisiana Office of Workers' Ccrnpensation Administration. Several
depositions were taken including plaintiff's deposition and plaintiff's
treating physician's deposition; extensive interviews with fact witnesses
and co-vrorkers were conducted.
-5-
288
FINAL DISPOSITION OF THE CASE:
Trial of the matter tcok place on August 8, 1990, euid Written Reasons for
Judgment were handed dcwn on September 26, 1990. Judgment was signed on
October 3, 1990, dismissing plaintiff's claim at his cost.
-6-
289
APPENDIX I
CASE #4
^^AME OF CASE;
Ronald J. Dalgo vs. Martco Partnership
TRIAL COURT AbO CASE DOCKET NO.
Twelfth Judicial District Court of Louisiana, docket #89-3430
Third Circuit Court of Appeal, State of Louisiana, docket #90-272
CITATION OF CASE IF REPORTED;
Not designated for publication.
PARTY I REPRESENTED AND NATURE OF M^ PARTICIPATION IN THE LITIGATION;
Plaintiff, Ronald J. Dalgo, sole counsel
DATE OR DATES OF TRIAL
October 31, 1989
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable William A, Culpepper, retired Judge, Third Circuit Court of
;^3peal, sitting ad hoc by appointment of the Louisiana Supreme Court
NAME, AEPRESS, AND TELEPHONE NO. OF OO-OOUNSEL;
Not applicable.
NAME, ADE»ESS, AND TELEPHONE NO. OF COUNSEL FOR EACH OTOER PARTY;
John F. Wilkes, III
ONEBANE, DONOHOE, BERNARD, TORIAN, DIAZ, MCNAMARA, & ABELL
P. 0. Drawer 3507
Lafayette, Louisicina 70502
(318)237-2660
SUhlARY OF THE CASE;
This workers' compensation claim arose as a result of an injury to
plaintiff's left knee which occurred on May 3, 1988. He vas struck by the
carriage of a piece of equipment on which he had been working causing a
three inch laceration to his knee. Plaintiff vras initially seen by
defendant's company doctor, a general practitioner, who referred him to an
orthopaedic surgeon. Plaintiff was then referred to a second orthopaedic
-7-
290
APPENDIX I
CASE #4, PAGE 2
sxorgeon who specializes in knee surgery. The oon^any orthopaedist also
referred plaintiff to a psychologist to participate in a pain and trauma
nanagsnent program. Weekly worters' ootnpensation benefits were paid to
plaintiff from the date of his injury until March 10, 1989.
On May 30, 1989, suit was instituted on plaintiff's behalf seeking
reinstatenent of weekly compensation benefits, reimbursement of medical
expenses incurred by or on b^alf of plaintiff, penalties, and attorney's
fees. Pre-trial discovery consisted of eighteen depositions, three of
which were medical depositions amd fifte«i fact depositions. The medical
depositions indicated plaintiff suffered from Reflex Sympathetic E)ystrophy
in his left knee secondary to the trauma he eiqperienced on May 3, 1988.
Medical testimony also indicated Reflex Synpathetic E)ystrophy was a little
known malady involving the sympathetic nerve systan usually secondary to
trauma, resulting in oonsteint eind sometimes excrutiating pain.
FINAL DISPOSTION OF THE CASE
The trial on the merits of this matter was conducted on October 31, 1989;
Written Reasons for Judgment were filed on December 15, 1989, and formal
judgment was signed on January 11, 1990 dismissing plaintiff's suit at
plaintiff's cost. On Jemuciry 19, 1990, a Devolutive /^jpeal was filed with
the Court of ;^3peal. Third Circuit, State of Louisicina. Argument of the
appeal took place on August 27, 1991 euid on October 2, 1991, judgment vas
rendered affirming the tried, court's decision.
-8-
291
APPENDIX I
CASE #5
NAME OF CASE;
Charles Gene Kelone vs. Insurance Conpany of North Alter ica/Aetna
Insurance Company
TRIAL COURT AND CASE DOCKEr NO.
Tvgelfth Judicial District Court of Louisiana, docket #86-9123-A
CITATION OF CASE IF REPORTED;
Not applicable.
PARTY I REPRESENTED AND NATURE OF My PARTICIPATION IN THE LITIGATION;
Plaintiff, Charles Gene Kelone, sole counsel
DATE OR DATES OF TRIAL
June 16, 1989
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED:
Honorable B. C. Bennett, Jr., Judge, Twelfth Judicial District Court,
Division "A"
NAME, ADDRESS, AND TELEPHONE NO. OF OO-OOUNSEL;
Not applicable.
NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL FOR EACH CTHER PARTY;
Ronald J. Fiorenza
PROVOSTY, SADLER, & DEIAUNAY
P. 0. Drawer 1791
Alexandria, Louisiana 71309-1791
(318) 445-3631
SUI^IARY OF THE CASE;
Plaintiff filed a workers' compensation suit on June 10, 1986 as a result
of injuries sustained on August 18, 1985. Plaintiff's weekly workers'
compensation payment was only $120.00 based on his pre-injury wage as a
nechanic. After suit was filed, plaintiff was paid all benefits to which
he was entitled under the Louisiana Workers' Compensation law. The suit
renained in inactive status until March 14, 1989 v*ien I received a
telephone call from defendant's adjuster advising that he wanted to settle
-9-
292
APPENDIX I
CASE #5, PAGE 2
plaintiff's claim. If the claim was not settled, he vas going to reduce
plaintiff's weekly benefit to $30.66 based on a job market survey that he
had had conducted. On March 16, 1989, defendant reduced plaintiff's
workers' compensation benefit to the sum of $30.66 per week. On March 28,
1989, a Rule to Show Cause why Weekly Workers' Corpensation Benefits should
not be Reinstated, for Penalties, Interest, and Attorney's Fees was filed.
The trial on the Rule was conducted on June 6, 1989. A judgment Wcis
rendered in favor of plaintiff ocn^jelling defendant to reinstitute weekly
workers' compensation benefits to plaintiff at the rate of $120.00 per week
from March 16, 1989. The insurer was cast with the statutory penalty and
ordered to pay attorney's fees.
FINAL DISPOSITION OF THE CASE;
As a result of the judgment rendered on the Rule, a settlement conference
was initiated with defendant's adjuster and attorney, and an amicable
settlement of plaintiff's claim wais reached.
-10-
293
APPENDIX I
CASE #6
NAME OF CASE;
Charles W. Pixley, d/b/a, Shelter Mortgage Ccxipany vs. Gulfco
Investment Group, Inc.
TRIAL COURT AND CASE DOCKET NO.
Twelfth Judicial District Court of Louisaina, docket #85-7844-A
Third Circuit Court of ^peal, State of Louisiana, docket #86-1142
CITATION OF CASE IF REPORTED;
Not applicable.
PARTY I REPRESEIJrED A^D NATURE OF MY PARTICIPATION IN THE LITIGATION;
Defendant, Gulfco Investment Group, Inc., lead counsel
DATE OR DATES OF TRIAL
July 17 and July 18, 1986
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable Edwin L. Laf argue, Judge Ad Hoc, Twelfth Judicial District Court,
Division "A", sitting by appointment of the Louisiana Supreme Court.
NAME, ADDRESS, AND TELEPHONE NO. OF CO-OOUNSEL;
Guy Marvin
Vice-President & General Counsel
Independent Life and Accident Company
One Independent Drive
Jacksonville, Florida 32276
(904) 358-5600
NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL FOR EACH OTHER PARTY;
Stephen M. Irving, lead counsel
645 Napoleon Street
Baton Rouge, Louisiana 70802
(504) 346-8774
Andrew B. Ezell, co-counsel, current address unknown.
-11-
2d4
APPENDIX I
CASE #6 - PAGE 2
SUMMARY OF THE CASE:
On September 4, 1985, plaintiff filed suit against defendant for breach of
contract alleging damages of $4,784,000.00. Plaintiff was a producer of
mortgage locins and pursuant to contract entered into between the parties
defendant was to purchase mortgage loans from plaintiff that met certain
criteria. On Decanber 10, 1985, defendeint filed a Reoonventional Danand
against plaintiff in the sum of $24,378.00 for money collected by plaintiff
for the benefit of defendant cind converted to his own use. Extensive
discovery was conducted prior to trisLL.
FINAL DlSPOSmcyi OF THE CASE;
A two day judge trial resulted in a verdict in favor of defendeint rejecting
plaintiff's denands at plaintiff's cost eind greuiting judgment on
defendant's Reoonventional Denand in the sum of $20,054.70. Plaintiff
appealed the district court judgmait to the Third Circuit Court of Appeal.
Action on plaintiff's c^ipeal was stayed due to his filing of bankruptcy.
After the bemkruptcy stay was lifted, a nuisance value settlement was paid
to plaintiff to end the litigation.
-12-
295
APPENDIX I
CASE #7
NAME OF CASE;
Alvin Jouglard, et ux vs. CNA Insursmce Company
TREAL COURT AND CASE DOCKET NO.
Twelfth Judicial District Court of Louisiana, docket #85-8189-B
CITATION OF CASE IF REPORTED;
Not applicable.
PARTY I REPRESENTED AND NATURE OF MSf PARTICIPAnON IN THE LTTIGATICW;
Plaintiffs, Alvin Jouglard and Bertha Jouglard, sole counsel
DATE OR DATES OF TRIAL
January 13, 1986
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable Harold J. Brouillette, Judge, Twelfth Judicial District Court,
Division "B"
NAME, ADDRESS, AND TELEPHONE NO. OF OO-COONSEL;
Not applicable.
NAME, ADDRESS, AND TELEPHONE NO. CF COUNSEL FOR EACH OTHER PARTY:
Sam N. Poole, Jr.
GOLD, SIMON, WEEMS, BRUSER, SHARP, SUES & RUM3EII.
P. 0. Box 6118
Alexandria, Louisiana 71307-6118
(318) 445-6471
-13-
296
APPEtOIX I
CASE #7, PAGE 2
Einployee's parents filed a workers' ccxnpensation suit for death benefits
arising from the September 5, 1985 death of plaintiffs' twenty-six year old
son. The claim was denied by employer's worker's compensation insurer
forcing me to file suit on November 12, 1985. Rather extensive fact and
medical discovery had to be conducted by deposition in what appeared to me
to be a rather routine worker's compensation claim. The employer's
insurer, CNA Insurance Conpany, continued to deny coverage up until the
actual morning of trial when defendant offered to pay the statutory maximum
per parent survivor's benefit and the statutory maxixttum funeral benefit.
Based on my advice, my clients elected not to accept the defendant's offer
and the case was tried.
FINAL DISPOSITION OF THE CASE;
Judgnent was rendered in favor of plaintiffs for the statutory maximum
death benefit for each parent, the statutory maximum funeral benefit,
msdical expenses incurred in the treatment of the deceased prior to his
death, statutory penalties of twelve percent on the foregoing and
attorney's fees.
-14-
297
APPENDIX I
CASE #8
NAME OF CASE;
State of Louisicina vs. Glenn Dauzat
TRIAL OOURT AND CASE DOCKET MO.
Twelfth Judicial District Ccxirt of Louisiana, Criminal Docket #42,521
Supreme Court of Louisaina, Docket #67,002
Supreme Court of Louisiana, Docket #80-0-2999
CITATION OF CASE IF E^EPORTED;
380 So. 2d 1376 (1980)
382 So. 2d 966 (1980)
PARTY I REPRESEOTED AND NATURE OF My PARTICIPATION IN THE LITIGftnON;
Defendant, Glenn Dauzat, oo-oounsel
DATE OR DATES OF TRIAL
Numerous appearances including Pre-Tried euid Post Trial Motions and an
ajpearance in the Loiiisiana Suprate Court. Jury trizd conducted June 25
and 26, 1980.
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable Jannes N. Lee, Judge, Twelfth Judicial District Court, Divison ■".
NAME, ADDRESS, AND TELEPHONE NO. OF OO-OOUNSEL;
Donedd R. Wilson
GAHARAN & WILSON
P. 0. Box 1356
Jena, Louisiana 71342
(318) 992-2104
NAME, AIX)RESS, AND TELEPHONE MO. OF OOUNSEL PC» EACH CriHER PARTY;
Honorable Eddie Knoll, District Attorney
P. 0. Box 426
Marksville, Louisiana 71351
(318) 253-6587
Assistant District Attorney Cliff E. Laborde, III
Laborde & Neuner
P. 0. Drawer 52828
Lafayette, Louisiana 70505-2828
(318) 237-7000
-15-
298
APPENDIX I
CASE #8 - PACE 2
SUMMARY OF TOE CASE:
Defendant was charged with four cxjunts of "Simple Criminal Damage to
Prc^rty." The prc^jerty that my client was accused of damaging consisted of
tractors, combines, welding machines, various farm equipment attachments,
amd a four-vrtieel drive pick-up. The damage to the equipment, which
exceeded $80,000.00, vras done by ramming and driving certain of the
equipment into other equipment. There were four sepeirate and distinct
piles of equipment located in a field, thus the four different counts for
which my client was indicted by the Grand Jury. Numerous pre-trial and
post-trial motions were filed including a Writ of Certiorari, which was
initially granted by the Louisiana Supreme Court, but was later dismissed.
The writ was based on the exclusion of blacks in the selection of the Grand
Jury.
FINAL DISPOSITION OF THE CASE;
The trial on the merits was conducted on June 25 and 26, 1980, resulting in
a jury verdict of "Guilty" on two of the four counts and "Not Guilty" cxi
the other two counts. Subsequent to defendant's conviction, he v«s charged
with attempting to jump bail. An appeal of the jury verdict »as filed with
the Louisicina Supreme Court. Based on a plea bargain with the District
Attorney on the attempt to jump bail, defendant served a six month sentence
concurrently with the two eighteen month oonsecutive sentences he was
ordered to serve on the counts for which he had been convicted.
Defendant's appeal was dismissed.
-16-
299
APPENDIX I
CASE #9
NAME OF CASE;
Elaine Dozier Rednon Vs. Firenan's Fund Americein Life Insurance Canpany
TRIAL COURT AND CASE DOCKET NO.
Twelfth Judicial District Court of Louisiana, docket #37,656
CITATION OF CASE IF REPORTED;
Not applicable.
PARTY I REPRESENTED AND NATURE Cff MSf PARTICIPATION IN THE LITIGATION;
Plaintiff, Elaine Dozier Redmon, sole counsel
DATE OR DATES OF TRIAL
August 29, 1978
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable Earl Edwards, Judge, Twelfth Judicieil District Court
NAME, ADDRESS, AND TELEPHONE NO. OF OO-OOONSEL;
Not applicable.
NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL PC» EACH OTHER PARTY;
James A. Bolen, Jr.
BOLEN, ERWIN, JC«NSON & COLEMAN, LTD.
P. 0. Box 906
Alexandria, Louisiana 71309-0906
(318) 445-8236
SUMMARY OF THE CASE;
Plaintiff filed suit to recover benefits due under a life insurance policy
as a result of the death of plaintiff's husband by gunshot. The issue
before the court was whether the shooting was accidental or suicide. The
Ave 'elles Parish Coroner and the Avoyelles Parish Sheriff's D^artment had
ruled plaintiff's husband's death a suicide and there was strong
circamstantial evidence to indicate suicide, but no suicide note was found.
Defendant denied the claim and suit was filed on March 7, 1978.
-17-
300
APPEM)IX I
CASE #9 - PAGE 2
FINAL DISPOSITION OF THE CASE:
The matter was tried on July 24, 1978. Written Reasons ware hcinded down on
August 29, 1978, cind judgment signed that day. Judgment was rendered in
favor of plaintiff and against defendant for the full amount of the policy
of insurance or the sum of $15,000.00 with legal interest frcm date of
judicicil danand and for all costs.
-18-
301
APPENDIX I
CASE #10
NAME OF CASE;
Phyllis Prevot vs. Nelson Williams, Jr.
TRIAL OOUOT AND CASE DOCKET MO.
Twelfth Judicial District Court of Louisiana, docket #31,880
Third Circuit Court of Appeal, State of Louisiana, docket #4804
CITATION OF CASE IF REPORTED;
306 So. 2d 377 (La. App. 3 Cir. 1975)
PARTY I REPRESENTED AND NATURE OF MX PARTICIPAnON IN THE LITIGftTION;
Plaintiff, Phyllis Prevot, sole counsel
DATE OR DATES OF TRIAL
Nuiterous appearances including Pre-Trial Motions, Exceptions, Post Trial
Motions and Appeal. Tried, conducted March 15, 1974, Appeal eurgued
December 2, 1974.
NAME OF JUDGE BEFORE WHOM CASE WAS TRIED;
Honorable Earl Edwards, Judge, Twelfth Judicicil District Court
NAME, ACPRESS, AND TELEPHONE NO. OF OXPUNSEL;
Not applicable.
NAME, ADDRESS, AND TELEPHONE NO. OF OOOtEEL FOR EACH CTTHER PARTY;
Richard V. Bums
P. 0. Box 650
Alexandria, Louisiana 71309-0650
(318) 442-4300
-19-
302
APPENDIX I
CASE #10, PAGE 2
SU^MARY OF THE CASE;
Plaintiff filed a suit for legal separation on July 3, 1972. Defendant
subsequently filed a second suit for divorce based on the grounds of
adultery. On January 9, 1973, defendant filed an answer to plaintiff's
original petition for separation and a reconventional demand for divorce
based on the grounds of adultery. On November 6, 1973, trial was set for
December 11, 1973. Plaintiff was represented by attorney Maxwell Bordelon
at the time of the institution of her suit for separation. On November 20,
1973, Mr. Bordelon filed a Motion withdrawing as counsel of record for
plaintiff. No notice of Mr. Bordelon 's withdrawal as counsel of record was
sent to plaintiff because Mr. Bordelon did not have the Houston address
where plaintiff was residing. On December 11, 1973, the case was called
for trial. Plaintiff made no appearance at the trial. Defendant,
represented by counsel, presented his case on the Reconventional Darand and
the Court granted a divorce to defendant on the grounds of adultery and
awarded custody of the parties' three minor children to defendant, subject
to reasonable visitation privileges in favor of plaintiff.
In December 1973, plaintiff who was residing in Houston, Texas, had
consulted a Texas attorney concerning the possibility of having her case
transferred from Louisiana to Texas for her convenience. On Deca±)er 10,
1973, the Texas attorney attempted to contact Mr. Bordelon to inquire as to
the status of plaintiff's case and to notify him that plaintiff was then in
the hospital and would not be able to attend the trial that was set for the
next day. Mr. Bordelon could not be reached and did not return the Texas
attorney's telephone call until December 12, 1973. On December 14, 1973, I
was contacted by plaintiff's mother and retained by her later that day. I
was inforned that plaintiff had bseen unable to attend the trial on December
11, 1973 because of her hospitalization following an accident in Houston.
Based upon the infomation I received from plaintiff's mother and fron Mr.
Bordelon, an application for a new trial was filed on December 14, 1973. A
hearing was held on the application on December 28, 1973, and a judgment
granting a new trial was signed on January 8, 1974.
FINAL DISPOSITION OF THE CASE;
The trial on the merits was held on March 15, 1974, after which a divorce
was granted in favor of defendant based on the adultery of plaintiff and
the custody of the three minor children was granted to plaintiff. The
judgitent was signed on March 22, 1974. Defendant filed an application for
a new trial on March 27, 1974 v*iich was heard and denied on ;^ril 2, 1974.
Defendant filed an appeal with the Third Circuit Court of Appeal for the
State of Louisiana. The appeal was argued on December 2, 1974. The
judgment of the trial court was affirmed at defendcint's cost.
-20-
303
II
NAME OF CASE;
Cliff G. Stinson, et al vs. Chevron D.S.A. , Inc., et clL
COURT AND CASE DOCKET ^P. ;
United States District Court, Western District of Louisiana
Lafayette-Opelousas Division
Civil Action #84-1910-0
PERIOD OF REPRESENTATION;
March 22, 1984 to October 7, 1985
PARTY I REPRESENTED A^P NATURE OF MY PARnCIPATICfti IN THE LITIGATION;
Cliff G. Stinson, Dorothy May Slocum Stinson, Gwendolyn Stinson Coutee,
Steve Stinson eind Rebecca Stinson, lead counsel
NAME, ADDRESS AND TELEPHONE NUMBER OF OO-OOONSEL;
Carol J. Aymond, Jr.
235 Southwest Main Street
Bunkie, lA 71322
(318) 346-6613
NAME, ADDRESS AND TELEPHONE NUMBER OF OXINSEL FOR EACH OTOER MAJOR PARTY;
Michael W. Adley
Juneau, Judice, Hill & Adley
P.O. Drawer 5769
Lafayette, LA 70505-1769
(318) 235-2405
Attorney for Dixie Lynn Field Drilling Ccnspany, Inc.
Alem K. Breaud
Roy, Ceurmouche, Bivins, Judice/ Haike & Breaud
P.O. Drawer Z
Lafayette, LA 70502
(318) 233-7430
Attorney for Trams it Casualty Insursmce Conpany
SUMMARY OF THE CASE;
This seeuian's case eurose eis a result of an injury that occurred while
plaintiff. Cliff E. Stinson, was being transported from a drilling platform
on which he had been working to a crew boat. Tte case was settled, in two
stages. A total settlement of $865,000.00 was reached in the case,
$665,000.00 being paid l^ Dixie Lynn Field Drilling Coipany, Inc. and
$200,000.00 being paid by Transit Casualty Insurance (ixipany with
$50,000.00 being repaid to Dixie Lynn Field Drilling pursuant to a "Mary
Carter" Agreement.
-1-
304
CHARLES A VANIK
'i'ASHiscroN DC 20004 *
rXF^JsrA-.
305
February 4, 1994
STATEMENT OF LADRACK D. BRAY
OPPOSING THE CONFIRMATICHI
OF JUDITH ROGERS
I am %n:iting to express my opposition to the confirmation of Judith
Rogers as a federal appeals judge.
I am an African American lawyer practicing in the District of Colum-
bia. The position I take against the confirmation of Judge Rogers
is based on my experience and knowledge as an appellate litigator
in the District of Columbia (D.C. ) Court of Appeals and on my obser-
vations of cases regarding other independent African American la%fyers
litigated in the Court of Appeals zmd the Court's treatment of those
cases. More specifically, my position evolves from the facts and
circumstances surrounding three cases (two civil and one criminal) I
litigated on behalf of African American clients in the D.C. Court of
Appeals, which caused me to become intimately involved in the appel-
late process and with the Court's appellate conduct and behavior. Two
of the cases were quite complex and involved significant records and
expert witnesses.
I believe that Judge Rogers is unable or lack the desire to treat poor
African American litigants, including children, represented by inde-
pendent African American lawyers in a fair, just, and impartial (or
non-discriminatory) manner.
I also question her character as it pertains to her supervision and
knowledge of fraudulent practices by D.C. Court of Appeals personnel,
and her refusal to take actions to discourage or condemn such conduct.
Further, I question her character as it pertains to her supervision
and knowledge of conduct or practice which bespeaks of obstruction of
justice, and her refusal to demonstrate that steps are being taken to
prevent such conduct, which in at least one instance could mean (and
could have meant) saving lives of District citizens.
One significant example of the discriminatory conduct of the D.C.
Court of Appeals under the leadership of Judge Rogers is a wrongful
death-medical malpractice case involving eight (8) African American
children as plaintiffs (including one child who was bom only hours
before her mother was killed--there was evidence not only of gross
negligence, but also of brutality, i.e., beating, surrounding the
death- -and the mother never got to hold the child before she was kil-
led) (Alj;Ce_^heffl^ld^_jet^_al^;;__v\_^Distrij^ un-
published), whereby the D.C. Court of Appeals affirmed a directed
verdict (denied a jury decision) in view of admissions by hospital
doctors that the mother's death was at least negligently caused by
an overdose of morphine administered by hospital personnel, and other
evidence; there also was a suppression of evidence of multiple deaths
(probably of African Americans) on the Obstetrics and Gynecology ward
306
of the D.C. General Hospital linked to the use of the drug Stadol
on patients, which likely resulted In more deaths, and evidence that
Stadol was a new drug and that the hospital experinented on Onita
Sheffield's (the deceased) body with the drug without her consent.
Onita Sheffield entered D.C. General Hospital in good health and
solely for the purpose of giving birth. She left dead with brain
daiaage. He argued and proved that the trial judge's directed verdict
was intentional, deliberate, and invidious.
In Colbert v. Georgetown Dniversity, 623 A, 2d 1244 (D.C. 1993), Judge
Rogers, as a member of the panel, held that admissions of negligence
by a doctor to a family member is prima facie evidence of medical
malpractice and the issue must be submitted to the jury. In Sheffield,
there was admissions by a doctor to family members, but the D.C.
Court of Appeals did not so hold (and even though Judge Rogers was
not a panel member, she could have, sua sponte, called for a hearing
by the full court if she felt an injustice had been done and if she
felt that the holding she made in Colbert should have been made in
Sheffield) . The important question is why didn't the Court of Appeals
so hold? In the Colbert case, the plaintiff's attorney was white; in
the Sheffield case, the plaintiff's attorney was black. Was race a
factor? Based on my experience and knowledge in and of the D.C. Court
of Appeals, I believe it was.
I continue to hope and believe, on behalf of Mrs. Alice Sheffield and
the Sheffield children, and myself, that justice will be done, and
that we all shall receive relief. We have continued to keep Onita
Sheffield's estate open.
Respectfully submitted.
lurack D. Bray, Esq. -J \
Laurack D. Bray, Esq
P.S. Enclosed are copies of two civil rights complaints filed in the
D.C. Federal courts on behalf of the Shef fields and Sceva Kendall
( a criminal matter). None of the plaintiffs, the Shef fields or
Kendall, were granted hearings on the Complaints. Therefore, there
were no determinations as to the merits of the allegations made. The
federal judge granted the judges judicial immunity against claims of
racial discrimination, so the judges never answered the charges or
allegations.
The question for the Senate, as to Judge Rogers' confirmation, is:
if the allegations are true, and I contend that they are, should
Judge Rogers be confirmed?
307
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLWiBIA
ALICE SHEFFIELD
Individually and as Personal Representative
on Behalf of the Estate of Onita Sheffield,
Deceased and on Behalf of Angel Kay Sheffield,
Taraeca Shawntee Sheffield, Onita Sheffield,
Star Angel Sheffield, James L. Nicks, Lafayette
Sheffield, Daniel Thompson Sheffield, and Tony
Sheffield, Children of the Deceased and Real
Parties in Interest
Plaintiffs ,
Serve at i 1118 Eight Street, N.E.
Washington, D.C. 20002
HENRY F. GREENE
Individually and as Judge of the Superior
Court of the District of Columbia
Serve *ti District of Columbia Courthouse
500 Indiana Avenue, NW Rm
Washington, D.C. 20001
and
JAKES BELSON, JOHN FERRE::, and ANNICE WAGNER
Individually and as Judges of the District
of Columbia Court of Appeals
Serve ati District of Columbia Courthouse
District of Columbia Court of
Appeals 6th Floor
500 Indiana Avenue, NW
Washington, D.C. 20001
CA No.qi-as^6
308
and
DISTRICT OF COLWiBIA
As a municipality and Party-Defendant in the
underlining or primary lawsuit (in the Superior
Court 'of the District of Columbia)
SERVE AT« Kayor Sharon Pratt Dixon
District Building
1300 Pennsylvania Avenue, NW
Washington, D.C. 20001
Defendants,
COr-IPLAINT
DECLARATORY JUDGMENT AND OTHER RELIEF
AND INJUNCTIVE RELIEF
Jurisdiction
1. Jurisdiction of this Court is invoked under or pursuant to
28 U.S.C. sees 1331, 13^3, 2201 and 2202t k2 U.S.C. sees. I98I ,
1983, 1985, and 1988j and the United States Constitution, Fifth
Amendment and Seventh Amendment.
Parties
1. The parties are as identified in the above-captioned title
as Plaintiffs and Defendants.
2 -
309
Brief Statement of the Facts >
Plaintiffs allege that a brief statement of the pertinent
facts for a proper understanding of this case is as follows «
1. This case involves the wrongful death of a 32-year old poor,
African-American or Black, female, inmate -pat lent who died on the
ward of J.C. (District of Columbia) Genera?. Hospital only hours
after giving birth to a healthy baby girl.
2. As a result of the deceased's death and events surrounding
the death, Alice Sheffield (mother of the deceased), on her own
behalf and on behalf of the deceased's estate and the deceased's
children, filed suit in the Superior Court of the District of Co-
lumbia charging the District of Columbia (hereinafter "District")
and several of its officers and employees with multiple claims or
acts of legal misconduct involving constitutional, federal, and
local law and charging them under both wrongful death and survival
act statutes.
3. Before trial, the District defaulted: (l) by filing untimely
Answers to Plaintiffs' Complaint; (2) by filing untimely Responses
to Plaintiffs' discovery requestsi and (3) by filing incomplete
and evasive discovery responses after it finally responded to
Plaintiffs' discovery requests (after being granted four^i) ex-
tensions of time within which to file discovery responses).
Plaintiffs, on at least two occasions, moved for a default judg-
ment against the District (to include its officers), but the trial
judge denied the motions.
k. At trial, after the trial judge had previously disposed
of several claims, there remained 16 Counts, that ist Count I
310
(wrongful death-based on multiple actions); Count II (medical
malpractice-based on an overdose morphine injection); Count III
(negligence-based on the deceased's fall from her hospital bed to
the floor); Count IV (assault and battery-based on physical acts
perpetrated against the deceased, including hitting and/or kicking
and shackling or handcuffing her extremities to the hospital bed);
Count V {kZ U.S.C. sec. I983 claim- charging deprivation of sub-
stantive due process, e.g., liberty and others related to the
handcuffs); Count VII (intentional infliction of emotional dis-
tress-based on the correctional officer watching the deceased suf-
fer and doing nothing to help her); Count IX (negligence-by hospi-
tal personnel regarding handcuffs); Count XI (negligent training-
D.C. Department of Corrections-correction officer); Count XII
(negligent training-D.C . General Hospital-hospital personnel);
Count XIII (medical malpractice-negligent administration of the
drug Stadol and battery for administering it without the deceased's
consent); Count XIV (intentional spoiliation of evidence- the de-
ceased's medical records directed towards the overdose morphine
injection); Count XV (cruel and unusual punishment-based on a
failure, on the part of the correction officer, to respond to the
deceased's serious medical need); Count XVI (fraudulent conceal-
ment-based on the Defendants' concealment of the deceased's medi-
cal records); Count XVIII (U2 U.S.C. sec. 1985-conspiracy to cover-
up evidence); Count XXI (deprivation of liberty interest in the
family unit based on the deceased's death); and Count XXII (loss of
life-pursuant to k2 U.S.C. I9B3- a survival claim based on federal
law). Except when otherwise precluded by the trial judge, Plaintiffs
- U
311
produced substantial evidence (for several Counts, more than
substantial evidence) to support each Count.
5. Plaintiffs' (to include the decedent) entire litigation
team (with the exception of two individuals) consisted of African-
Americans, that is, the decedent, the Plaintiffs (deceased's
mother and children), Plaintiff's counsel. Plaintiff's expert
witnesses and their lay witnesses. Plaintiffs' counsel was (is)
a sole practitioner and litigated the entire case himself (i.e.,
not connected with a white law firm or another (white) lawyer ) .
Plaintiffs offered the testimony of six lay witnesses (and one
other witness's testimony was not admitted--albeit erroneously,
Plaintiffs contend) and five expert witnesses (one out-of-state
medical/health expert who came from California and testified as
to consent and informed consent) (and including three adverse ex-
pert witnesses, including the District's medical examiner).
6. After Plaintiff's case-in-chief, the trial judge, sua
sponte (or voluntarily), moved for a directed verdict (as the
District was prepared to put on its case-in-chief and did not
make a formal motion or request for a directed verdict) and en-
tertained Plaintiffs' opposition to the motion as to each remain-
ing Count.
7. After completion of Plaintiffs' oral opposition to the direct-
ed verdict, the trial judge directed a verdict as to all remain-
ing Counts. at trial. Thereafter, Plaintiffs noted a timely appeal.
8. At several points throughout the above-mentioned litigation,
Plaintiffs, through counsel, charged the trial judge with bias,
prejudice, and invidious discrimination, based on his conduct dur-
ing pre-trial and trial, and indeed, at one point had moved for his
312
recusal (through a motion, and, subsequently--after the motion
was denied, through a Writ of Mandamus) based on his three-year
extra-judicial relationship with defense counsel and on his
suggesting motions for defense counsel to file (and his, there-
after, granting the sairae ss id motions).
Count I .
k2 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFFS' SEVENTH
A^:Ei€)r.:ENT constitutional right to a trial by jury.
1. Plaintiffs allege that Defendant Judge Henry F. Greene of
the Superior Court of the District of Columbia, under color of
District of Columbia law (as a judicial officer of the District
of Columbia Superior Court), deprived Plaintiffs herein of their
Seventh Amendment constitutional right to a trial by jury by im-
properly and with ill will directing a verdict in favor of Defen-
dant District of Columbia in the case of Alice Sheffield v. Dis-
trict of Columbia, et. al., CA NO. 9799-37- Specific evidence of
the malice is: (1) Judge Greene himself initiated and made the
motion for a directed verdict and not the District of Columbia
(hereinafter "District"); the District, through its counsel, never
made a motion for a directed verdict, was prepared to put on its
case-in-chief, and placed the directed verdict decision in Judge
Greene's hands; (2) Judge Greene developed animosity and hostili-
ty towards Plaintiffs and their counsel (particularly their coun-
sel) for not retaining an independent medical doctor (with Plain-
tiffs choosing instead to rely on and/or utilize the District's
medical doctor, i.e., the medical examiner, pursuant to District
of Columbia case law--because the Plaintiffs found and/or deter-
mined that an independent doctor was not necessary under the
313
circumstances of the particular case in question). At various
times during the litigation Judge Greene continued to comment that
things would have been a lot easier if Plaintiff had brought in
an ind'ependent physician. Further, he forecast that Plaintiffs
would not prevail on their wrongful death and medical malpractice
claims before Plaintif'^'s had presented most of their evidence
supporting those claims (i.e., a foregone conclusion); (3) Judge
Greene made an intentional false statement on the record (stating
that he was not aware of a controlling case--or, more specifically,
that it was the first time that he had seen the case--when in
actuality he had seen and referred to the case in another, and
concurrent, medical malpractice trial (approximately one month
prior thereto)), and assumed a false and fabricated argument or
position in an attempt to preclude the Plaintiffs from utilizing
the District's medical expert at trial. It was only because
Plaintiff's counsel came to trial prepared with a memorandum of
law that Defendant Greene eventually conceded and Plaintiffs were
allowed to use the expert. (4) Defendant Greene himself concluded
on the record that an overdose of morphine was a cause of death,
and that the only remaining issue related to the morphine cause of
death was how the deceased received the morphine injection (i.e.,
who gave her the morphine injection), which was clearly a jury
question (assuming, for the sake of argument, that at that point
it had not been proven who gave the deceased the morphine--Plain-
tiffs believe it had been (hospital personnel). (5) In at least
one other wrongful death case involving a poor, Black family
(litigated at or about the same time as the herein case in ques-
tion— Sheffield v. P.O. ) , Defendant Greene denied the family a
314
trial by jury (by dismissing the case with prejudice before trial,
based on a discovery problem).
Evidence of a planned directed verdict by Judge Greene is
that he requested and received a U.S. Karshal to be present in
the courtroom during this civil medical malpractice/wrongful death
proceeding (which is an extraordinary move), anticipating that the
Plaintiffs and/or their counsel would react with outrage, or other-
wise inappropriately (or, rather, appropriately under the circum-
stances of the case) to his directed verdict, and believing that
he would need someone, perhaps, to control their behavior.'
2. Plaintiffs allege further that Defendant Greene's reasons
given for the directed verdict in favor of the District in the
Sheffield case were either erroneous or immaterial based on District
of Columbia (or other) law, the facts, and the evidence.
3. Plaintiffs allege that they presented sufficient evidence
for each Count of their Complaint and/or Amended or Second Amended
Complaint to support a verdict in their favor (or, alternatively,
toovercome a directed verdict for the Defendants); indeed, for
several Counts Plaintiffs presented overwhelming evidence (in-
cluding circumstantial evidence and reasonable inferences), suf-
ficient to not only present a prima facie case, but also to prove
their case by a preponderance of the evidence.
For exeimple, as to Count II of the Second Amended Complaint
(hereinafter references to "Counts" will refer to the Second Amended
Complaint) (charging the District with negligently killing or other-
wise causing the death of the deceased by injecting her with an
overdose of morphine). Plaintiffs produced at least the following
admitted evidence at triali (1) an admission by the District's own
315
medical doctor (in the medical examiner's office) that D.C. Gene-
ral Hospital personnel had given the deceased the overdose of mor-
phine and that the high level of morphine caused .the deceased's
death,' (2) the District's own autopsy report (produced by its
medical exeiminer and toxicologist) showing a high level of mor-
phine in the deceased's system at the ti'^;e of her death and show-
ing that the deceased suffered brain damage before she died, (3)
testimony of the District's medical exajniner stating that the
deceased died, at least, of an overdose of morphine, and that
the hospital could have caused her death (she testified as to
standard of care, i.e., normal dosej breach of the standard, i.e.,
too high a level? and causation, i.e., the high level of morphine
caused the deceased death--at least one cause), (4) testimony of
two witnesses to the afirementioned medical doctor's admission
of the District's hospital personnel's responsibility for the
deceased's death due to the overdose of morphine, (5) testimony of
another witness who witnessed another District doctor state (and
admit) that, "that would not have happened (the deceased's death)
if you hadn't given her (the deceased) the wrong medicine (mor-
phine) "--this witness was hospitalized on the same ward and at or
about the same time as the deceased at the time of the deceased's
death; (6) evidence that the deceased was in good health after
giving birth (and the baby was — and is — in good health as well —
indicating that the overdose of morphine was given to the deceased
after she gave birth); (?) evidence that the deceased was under
constant surveillance at all times (by a correction officer) while
on the ward of D.C. General Hospital; (8) evidence that the hospi-
tal personnel were required to detoxify the deceased after she en-
tered the hospital (which would have detected any contraindicated
316
drugs in her system, i.e., morphine), but the hospital did not
detoxify her. (9) Evidence that District hospital personnel in-
tentionally destroyed crucial medical records that would have pro-
vided direct evidence that the hospital personnel injected -the de-
ceased with an overdose of morphine (i.e., an inference could te
drawn that the destroyed medical records containe'' specific in-
formation showing that an injection of morphine was prescribed or
ordered and showing who injected the deceased with the morphine )j
(10) evidence that after the hospital personnel discovered or
realized that the deceased had been given an overdose of morphine,
they failed to give the deceased an antidote that could have pre-
vented her death; and other testimonial and dencnstrative evidence
that went to the morphine injection that Defendant Greene did not
admit, but which Plaintiffs believe should have been admitted.
Another example is Count XIII (the battery medical malprac-
tice Count related to the injection of the drug "Stadol" ) . Plain-
tiff produced at least the following admitted evidence i (1) hospi-
tal medical record (Phyacian's Order Sheet) showing that the drug
Stadol was ordered for the deceased by a District doctor; (2)
medical record (Nurses' Progress Notes) showing that the drug
Stadol was administered to the deceased; (3) testimony of Plain-
tiffs' qualified expert on consent and informed consent (^;s.
Dianne Jackson), based on her review of the deceased's medical
records and her expertise on consent, that the deceased did not
consent to the administration of the drug Stadol; (k) evidence that
morphine and Stadol have similar qualities and effects and are
contraindicated for each other (or for use with each other) and
that Stadol is 8 times stronger than morphine; (5) evidence that
both Stadol and morphine were in the deceased's body at the same
317
time through action of the District's employees; (6) direct evi-
dence that an overdose morphine injection was a cause of death and
powerful circumstantial evidence that Stadol was a cause of death;
(7) evidence that Stadol was explicitly not recommended for use
with or for the deceased (PDR - "Physician's Desk Reference"); (8)
the deceased suffered the type of risks that the use of Sfdol
could cause (i.e., respiratory depression); (9) evidence (PDR)
that at the time of the Stadol injection into the deceased, the
manufacturer itself did not know its exact mechanism (i.e., how
it acted on the body or its system--al though the manufacturer did
know "some" of its effects); (10) evidence (testimony by the
District's medical examiner--Dr. Silvia Comparini) that there had
already been several Stadol-related or caused deaths on the ward
of D.C. General Hospital at the time of the herein deceased's
death; (11) evidence (admission by the District's medical doctor--
Dr. Philip Santiago) that the District was experimenting on the
herein deceased to determine what effect the Stadol would have on
her body (because such said effects were widely unknown); (12)
evidence that the deceased suffered brain damage before her death
due to a lack of oxygen (which was caused by the morphine and Sta-
dol injections); and (13) evidence that D.C. General Hospital was
required to detoxify the deceased after she entered the hospital to
ascertain if she had any contraindicated drugs (e.§. , morphine) in
her body when she entered, but that the hospital failed to so
detoxify her.
A final example is Count XV, the Eight Amendment cruel and
unusual punishment Count. As to this Count, Plaintiffs presented
at least the following admitted evidence: (1) medical records, et.
318
seq . , showing that the deceased had recently given birth to a
baby girl and was in post-partum recovery when the acts or con-
duct to follow was established; (la) admission by District's
police' officer that the deceased was diagnosed as dying from
hemorrhaging — indicating that there were blood and blood clots
from the deceased present (i.e., deceased wallowing in blood)?
(lb) admission by a District doctor (Dr. Conrad Duncan) that the
deceased was lying on the floor (in the hospital room) with her
single extremity (left leg) shackled to the hospital bed when he
entered the hospital room after being summoned by a nurse to res-
pond to the deceased's suffering, and that at the same time, the
female correction officer was present and sitting on a chair
watching and doing nothing to assist the deceased; and that hos-
pital staff had to order the correction officer to remove the
shackles from the deceased's leg; (2) admission (medical record)
showing that the District's nurse observed the deceased complain-
ing of shortness of breath and requesting medicine for paint ob-
served that the deceased left leg was handcuffed to the hospital
bed while deceased was sitting on the bed and later that the de-
ceased was sitting on the "floor" (she had apparently fallen) and
her single extremity "remain(ed) cuffed" i observed that the
guard (correction officer) was present; observed that the deceased
was perspiring "profusely" and that the deceased was exhibiting
white mucous foam from her mouth and thrashing about on the bed
and on the floor; and observed a Code Blue being called; (3) ad-
mission (medical record) by a different nurse showing decedent was
perspiring profusely and complaining of shortness of breath; (U)
a D.C. correction officer's log sheet showing that deceased was
shackled and that she was vomiting; (5) testimony by Plaintiffs'
319
qualified expert (Ms. Dianne Jackson) that the use of metal
handcuffs on inmate-patients is inhumane treatment; (6) testimony
by the District's own penological expert (Mr. Hallem Williams)
(Plaintiffs' adverse expert witness) that a correction officer is
required to take steps to seek medical assistance for an inmate in
emergency situations; (7) testimony by the District's own hospital
administrator (Kr. John Dandridge, Jr. ) (Plaintiffs' adverse ex-
pert witness) that the hospital (D.C. General Hospital) never uses
metal restraints on patients as a means of proper patient care;
(8) evidence (medical records and log sheet) that the correction
officer observed the deceased suffer and never sought medical help
or assistance for her or attempted to help the deceased herself
for at least 1^ hours; (9) evidence (testimony of Plaintiffs'
nurse-lawyer expert — Ms. Pamela Copeland) that the deceased was
suffering from "severe respiratory distress" (during the time the
correction officer was sitting and watching her suffer) j
(10) some evidence that the deceased was battered physically
by the correction officer; (11) evidence (testimony) that Dis-
trict personnel (medical examiner's office) would not allow the
Sheffield family to view the body before the autopsy--not even
for purposes of identifying the body--the personnel simply showed
the family two polaroid-type pictures of the head of the deceased
(where the family might have discovered abuse or dajnage to the
body); and (12) evidence (autposy report) that the deceased suf-
fered brain damage before her death and died as a result of a lack
of oxygen.
k. Plaintiffs allege that they produced five (5) expert wit-
nesses whom all produced significant testimony that supported
Plaintiffs' case and„ imuQsed liability on Defendants. Included
320
among the experts were a medical doctor, a penologist, a nurse-
lawyer, and a health consultant. The medical doctor (Dr. Compa-
rini), at least, testified that the standard of care for a mor-
phine injection was a "regular" dose, that as to the herein de-
ceased the standard of care was breached because the level of
morphine found in the deceased's blood was "too high", and that
the overdose of morphine, at least, caused the deceased's death.
The penologist (Mr. Williams) testified that the standard of care
for action by a correction officer in an emergency situation on
the hospital ward while guarding an inmate-patient was to seek
medical assistance for an inmate-patient, and it was shown that
the standard of care was breached by a demonstration that the cor-
rection officer took no steps to aid the deceased herself or to
seek aid, and that nonaction necessarily contributed to and caused
the deceased's death due to a lack of oxygen (effects of the mor-
phine and Stadol), and it also aggravated her existing condition
at the time. The nurse-lawyer (Ks. Copeland) testified that the
nursing personnel violated the standard of care for responding to
the deceased's severe respiratory distress by not providing proper
care for the deceased during her state of distress (such as by not
taking vital signs timely, by not timely securing a more senior
physician, and by not recognizing the symptoms of the deceased's
distressed state). The health/medical consultant (Ms. Jackson)
testified to the standard of care regarding obtaining consent
(and informed consent) from a patient for the administration of
certain drugs. Ms. Jackson testified that the standard of care
of consent to the administration of the drug Stadol was "specific"
consent by the deceased for the administration of the drug, that
D.C. General's personnel violated the standard of care by not ob-
321
taining such "specific" consent (and therefore no consent).
Plaintiffs (alleging battery medical malpractice as to the Stadol)
proved, in addition to the lack of consent, that the deceased was
given -a 2mg intramuscular dose of the' drug Stadol (through medical
records, i.e., physician's order sheet, nurses' progress notes),
that both Stadol and morphine were in the deceased's body at the
same time, that Stadol and morphine have the same qualities and
effects, that Stadol is 8 times stronger than morphine, and that
morphine definitely was a cause of death, and that, therefore,
Stadol had to, at least, contribute to the deceased's death (es-
pecially when the two drugs are contraindicated for use with each
other) .
5- Plaintiffs allege further that Defendant Greene "acted out
of personal motivation and. . . used his judicial office as an
offensive weapon to vindicate personal objectives," that is, to
deny Plaintiffs (particularly because they are poor and black) a
money judgment and to deny Plaintiffs' black counsel (particularly
because he was a sole practitioner and black) attorney fees.
Plaintiffs allege that in least one other wrongful death case in-
volving poor African-American children (or the death of such said
children). Defendant Greene has alleged, through adopting the
government's position, that the only person interested in pursuing
the wrongful death claims was the attorney in the case (insinua-
ting that no one else cares about the death of the children or
about the liability for their death--even though the father,
albeit incarcerated, continued to express an interest in the
children's deaths and an interest in determining liability for
their deaths) and insinuating that his only interest in the case
was attorney fees.
322
Evidence that Judge Greene adhered to the same or a similar
philosophy in the underlining herein case of Sheffield v. Dis-
trict of Columbia, et. al.. CA NO. 9799-97 (hereinafter "Shef-
field") is that at one point before delivering the directed ver-
dict, Judge Greene stated to counsel, "the bottom line Mr. Bray,
is that you are not going to get to the jury on any of your Counts."
The Counts or claims were not Kr. Bray's (or counsel's), rather
the claims were the Plaintiffs, yet Defendant Greene directed his
statement to counsel as if counsel was bringing the suit (to col-
lect attorney fees); and Defendant Greene was letting counsel know
that he ( counsel )was not going to collect any fees, while at the
same time totally disregarding the rights of the real parties (Krs.
Sheffield and the children). Again, the same philosophy was ad-
hered to here by Defendant Greene as was in the aforementioned case,
that is, only Plaintiff's counsel was interested in pursuing the
litigation and not the family (even though at one point in the
trial, the court had to call a recess because Mrs. Sheffield broke
down in tears over certain testimony concerning her deceased daugh-
ter).
6. Plaintiffs' allege further that the District itself did not
move for a directed verdict in the trial court, rather. Defendant
Greene, sua sponte, moved for and directed the verdict. Again,
the District's counsel was prepared to and intended to put on his
case-in-chief.
7. Plaintiffs allege further that they were deprived of a trial
by jury because the jury (in Sheffield) did not make the decision
(as to factual determinations, rights, liabilities, damages, or
other) .
7a. Plaintiffs allege that they have been and continue to
323
be injured by the denial of a trial by jury as guaranteed them
by the Seventh Amendment of the United States Constitution, and
as long as the right is denied, they will continue to suffer in-
jury. '
8. Plaintiffs allege that Defendants Judges James Belson,
John Ferren, and Annice Wagner, under color of District of Colum-
bia law (as judicial officers of the District of Columbia Court
of Appeals), by knowingly and willingly affirming Defendant
Greene's improper directed verdict, in full view of the over-
whelming evidence supporting Plaintiffs' case and the remaining
points of reversible error (e.g., the trial court relying on an
erroneous legal standard to support its decision), deprived the
Plaintiffs-appellants of their constitutional right to a trial
by jury.
Count II
k2 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFFS' STATUTORY
RIGHT TO EQUAL TREATI^'JiNT (42 U.S.C. SEC. I98I) .
1. Plaintiffs herein incorporate by reference all allegations
set forth in Count I as if said allegations were set forth herein.
2. Plaintiffs allege further that Defendant Greene acted under
color of District of Columbia law in depriving them of their
Federal statutory right, pursuant to 42 U.S.C. sec. I98I, of equal
treatment (to that of white people) in obtaining and contracting
for a jury trial and giving evidence pursuant thereto.
2a. Plaintiffs allege that they are African-American (or
black) and Defendant Greene is white.
2b. Plaintiffs allege that the evidence that they submitted
was fully qualified to be submitted to the jury for consideration
324
and/or decision.
2c. Plaintiffs allege that Defendant Greene rejected their
evidence (and did not allow it to be submitted to the jury) (i.e.,
directed verdict).
2d. Plaintiffs allege that even if Defendant Greene's, reasons
for rejecting Plaintiffs* evidence are deemed "articulable, legi-
timate reasons", they were/are pretexual (for a discriminatory
purpose ) .
3. Plaintiffs allege further that they attempted to contract
with the Superior Court of the District of Columbia for a jury
trial, and that part of their attempt to so contract was payment
of a specific consideration (sum of money) for a jury trial (which
is not required for a non-jury trial) (with prepayment being waived).
4. Plaintiffs allege that Defendant Greene, as an officer-agent
of the Superior Court of the District of Columbia, refused to
submit their evidence to the jury for consideration and/or deci-
sion, and, therefore, refused them a jury verdict (i.e., a jury
trial) because they were African-American and poor.
Count III
k2 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFFS' FIFTH
AMENDMENT CONSTITUTIONAL RIGHT TO DUE PROCESS AND EQUAL PROTECTION
OF THE LAW.
1. Plaintiffs incorporate by referaxe all allegations asserted
in Counts I and II as though they were herein asserted .
2. Plaintiffs further allege that Defendant Greene, acting
under District of Columbia law, willfully deprived them of their
Fifth Amendment constitutional rights to due process and equal pro-
tection of the law.
325
3. Plaintiffs allege that Defendant Greene deprived them of
due process of law by, at least, depriving them of a fair and
impartial trial by: (1) forcing Plaintiffs' counsel (by ordering
him after he initially refused to do so) to reveal his litigation
strategy for obtaining certain evidentiary matter from certain
witnesses (i.e., how counsel would prove his case at trial) to
he and defense counsel, and thereafter, using this information to
prepare District witnesses for cross-examination (for example,
discovering that Plaintiffs would rely on the Physician Desk
Reference (PDR) for some evidence and would rely on the medical
examiner as their expert and that the medical examiner would be
required to rely on the PDR in order for the evidence to be ad-
mitted, thereafter, preparing the medical examiner (Dr. Comparini )
to testify at trial that she doesn't rely on the PDR (albeit the
PDR is universally relied upon by physicians as the primary ref-
feral source for information on drugs and/or medications); (2)
unconstitutionally supressing evidence by protecting District
witnesses from from answering questions at trial that would have
provided significant evidence regarding liability and negligence
against the District (e.g., prohibiting counsel from questioning
the medical examiner about her investigation of the death of the
deceased); (3) falsely stating that he was not aware of a leading
and controlling D.C. case, in order to prevent Plaintiffs from
using the medical exajniner as an adverse medical doctor (in or-
der to help defeat Plaintiffs' case)(NOTE« Plaintiffs' counsel
came to trial prepared with a memorandum of law on the subject,
consequently, the Plaintiffs were allowed to use the doctor as a
medical expert); (U) interpreting a District expert witness's
response to a cross-examination question for the jury; (5) tell-
326
ing the jury that the deceased's death was as a result of the
theory set forth by the District and its medical examiner (prior
to dismissing the jury); and (6) conspiring with the court repor-
ters to alter the trial transcript for the purpose of impeaching
Plaintiffs' counsel credibility and for denying Plaintiffs cer-
tain relief at trial (e.g., benrh warrant) and on appeal.
U. Plainti/fs allege that Defendant Greene, under color of law,
deprived Plaintiffs of equal protection of the law by treating
them (and their litigation team) differently, through disparate
treatment, based on their race or color and economic state (i.e.,
black and poor). One example of the disparate treatment was Judge
Greene's treatment of Plaintiffs' African-American health consul-
tant expert as compared to a similarly-situated white expert. He
deemed the white expert to be "clearly" qualified based on her
education alone, although she had no advanced degrees. Conversely,
he adjudged the black expert to be "marginally" qualified based on
toth her education and experience, and even though she (the black
expert) had two advanced degrees, in addition to her bachelors de-
gree and other degrees, licenses, and credentials.
5. Plaintiffs allege that Defendants Belson, Ferren, and Wagner,
under color of District of Coliombia law, willfully deprived Plain-
tiffs of their constitutional right to due process of law by deny-
ing Plaintiffs an adequate, proper, and appropriate (under the cir-
cumstances) review of their claims. That is, the Court issued an
unconstitutional affirmance.
5a. Plaintiffs allege that up to and through oral argument,
the Sheffield case (App. No. 89-369) was screened and assigned a
"Regular" status (and was placed on the "Regular" calendar), and,
invariably, "Regular" calendar cases are published, regardless of
327
whether the decision below is affirmed or reversed. The Sheffield's
Regular case was not published. Plaintiffs allege that the case
was not published because the Defendants were intent on affirming
the trial judge's decision and denying the Plaintiffs relief, des-
pite the evidence and law, and it would have been impossible to
publish an affirmance without falsifying and/or manipulating the
evidence or facts, therefore, a Kemorandun Opinion and Judgment
was submitted, which allows for conclusory findings without citing
to specific evidence.
5b. Plaintiffs allege that there was no substantive analysis
of the legal standard (directed verdict) , of their claims, or of tY
evidence Plaintiffs presented to demonstrate how the Court reached
its conclusion. In essence, Plaintiffs allege, they did not re-
ceive an appeal at all. What they received was merely a "symbol
wihout substance."
5c. Plaintiffs allege that as a result of the issuance of
the KOJ rather than an analytical opinion, there wast (1) 'a cover-
up of the very serious, gruesome, and perhaps, brutal acts committed
by District employees against the deceased while she was undergoing
recovery from childbirth and (2) a coverup of the serious miscon-
duct on behalf of the trial judge during the trial proceedings,
including violation of the Code of Judicial Conduct and, probably,
violation of federal criminal law.
6. Plaintiffs allege that the appellate Defendants, under color
of law (D.C.), otherwise deprived them of equal protection of the
law, by treating them and/or their case disparately different.
6a. Plaintiffs allege that evidence of the disparate treat-
ment can be arrived at by comparing another inmate-wrongful death
- 21 -
328
case, Finkelstein v. District of Columbia, No. 88-648, en banc,
June 5, 1991, with the Sheffield caset
Similarities » (a) both cases involved allegations of
wrongful death; (b) both cases involved prisoners or inmates;
(c) both cases alleged a failure to respond to the needs of the
deceased inmate by the respective correction officer contributed
to the cause of the inmate's death; and (d) both cases were before
the Court of Appeals on either a directed verdict (Sheffield) or
a J.N.O.V. (Finkelstein), based partly on causation.
Equal Protection Differences! In Sheffield, the deceased
prisoner was black and the family's attorney was black; in
Finkelstein, the deceased prisoner was white and the family's
attorneys were white .
DISPARATE TREATMENT by the herein appellate Defendants i
(a) in Sheffield, the herein appellate Defendants (Belson, Ferren,
and Wagner) voted to affirm the trial court's directed verdict; in
Finkelstein, they voted to reverse the trial court's grant of a
J.N.O.V.; (b) in Finkelstein, the herein panel sustained a ruling
of an allocation of damages; in Sheffield, the panel sustained a
ruling which provided for no damages . ♦*One other important simi-
larity: both cases were suits against the District and the trial
courts' judgments were decided in the District's favor.
NOTEi in the Sheffield case, besides the failure to respond charge,
there were three (3) medical malpractice claims and several other
constitutional and tort claims, and much more evidence.
7. Plaintiffs allege that the so-called "appeal" in the Sheffield
case was merely a "symbol without substance," for in reality they
did not receive an appeal at all.
8. Finally, at least one judge of the D.C. Court of Appeals (at
- ?? -
329
the time) thought the Sheffield case was important enough to
request (and require) a response from the District to Plaintiffs'
Petition for an Initial Hearing En Banc (albeit the Petition was
ultimately denied), yet, the herein Defendants did not publish
an analytical opinion, even though the case had been placed- on
Regular calendar.
Count IV.
k2 U S.Cl SEC. 1983 AND DEPRIVATION OF PLAINTIFFS' RIGHT TO
STATUTORY ATTORNEY FEES (42 U.S.C. SEC. 1988).
1. Plaintiffs incorporate by reference all allegations in Counts
I through III as though those allegations were set forth herein.
2. Plaintiffs allege further that Defendants, each and all of
thera herein named (except D.C.), under color of District of Colum-
bia law, willfully deprived them of their statutory right to
attorney fees, pursuant to U-2 U.S.C. sec. 1988.
3. Plaintiffs allege further that as to appeal no. 89-369 (the
object of this Complaint), they were the prevailing parties in'
both the trial court and on appeal, and, therefore, are entitled
1D attorney fees, based on their civil rights (sec. 1983) claims.
k. Plaintiffs further allege that but for the erroneous direct-
ed verdict depriving them of their constitutional right to a trial
by jury, they would have prevailed at trial, and further, that
based on the evidence of record at the time the verdict was direc-
ted, they necessarily (and as a matter of law) were the prevailing
parties.
5. Plaintiffs further allege that Defendant Greene specifically
and willfully deprived them of attorney fees by directing comments
to their counsel indicating that counsel would not recover attorney
330
fees.
6. Plaintiffs allege that Defendants Belson, Ferren, and Wagner
deprived them of their statutory attorney fees by unconstitutional-
ly affriming Defendant Greene's decision, which denied them at-
torney fees, in full knowledge and awareness that Plaintiffs were
the true prevailing parties in the trial court and on appeal.
Count V.
k2 U.S.C. SEC. 1985 (3) AND PLAINTIFFS' FIFTH AMENDMENT RIGHT TO
EQUAL PROTECTION OF THE LAW.
1. Plaintiffs incorporate by reference here all allegations
made in Counts I through IV as though they were herein alleged.
2. Plaintiffs further allege that all Defendants herein, under
District of Columbia law, conspired, at least indirectly, to de-
prive them of equal protection of the law as to their Seventh
Amendment right to a trial by jury and their Fifth Amendment right
to due process of law, based on their race or color (African-Ameri-
can or black) regarding the civil case of Alice Sheffield v. Dis-
trict of Columbia, CA NO. 9799-8? and App. No. 89-369-
3. Plaintiffs allege that Defendant Greene acted in furtherance
of the conspiracy by deliberately and with ill-will directing a
verdict in favor of the District in view of Plaintiffs overwhelm-
ing evidence supporting their case and against the District and by
treating the Sheffield case differently from, at least, the case of
Washington v. Washington Hospital Center, 579 A. 2d 177 (D.C. 1990)
(in that case, he stated that the case would be submitted to the
jury based on a party's admission (and 3 other supportive documents)
alone), the Sheffield case had much more evidence than Washington
(where liability was premised on a theory of causation) but
331
he did not submit it to the jury.
U. Plaintiffs allege that Defendants Belson, Ferren, and
Wagner acted in furtherance of the conspiracy by affirming De-
fendant Greene's actions in full view, and awareness of the over-
whelming evidence Plaintiffs produced and the serious misconduct
by Defendant Greene in governing the trial proceedings; by not
providing Plaintiffs with a due process and meaningful appeal
(in essence, they had no appeal at all), especially when con-
sidering the complexity (or seriousness) of several of the claims--
indeed, Plaintiffs' medical malpractice claim based on an over-
dose of morphine was not even mentioned in the appellate Defen-
dants' Memorandum Opinion and Judgment, and this was the most
serious local law claim brought (and upon which Plaintiffs had
the most evidence — which is why it was not mentioned. Plaintiffs
contend); and by treating their appeal differently from that of
Finkelstein which they voted to reverse (where Plaintiffs herein
evidence
had at least as much or moreAto support their claim of a failure
to respond as in Finkelstein, supra).
5. Plaintiffs allege that Defendant Greene conspired, at least
indirectly, with the trial court reporters to alter the trial
transcript in order to deny Plaintiffs equal protection to a due
process fair trial and appeal.
6. Plaintiffs allege that Defendant Belson and other members of
the D.C. Court of Appeals conspired to assign Defendant Belson to
sit on the panel and write the opinion in the Sheffield case for
the purpose of denying Plaintiffs monetary damages and other re-
lief. Evidence of this allegation is that in another and separate
appeal involving the herein Plaintiffs, Defendant Belson dismissed
an appeal of unquestionable final orders, which would have granted
- 25 -
332
Plaintiffs monetary relief. His justification for refusing to re-
view the final orders was that because there was a pending wrong-
ful death action, whereby Plaintiffs might obtain monetary relief
(if th'e action would be resolved in their favor), there was no
need to grant Plaintiffs their rightful and statutory appeal of
final orders because if the Plaintiffs recovered money in the
Sheffield case that would supply them with all the money they might
need for the matters which were the subject of the final orders.
Thereafter, after being assigned to write the opinion in the
Sheffield case, Defendant Belson (and the remaining appellant
Defendants herein) denied Plaintiffs all relief. Consequently,
Plaintiffs were denied relief in both the prior appeal and the
Sheffield case (i.e., all relief), where but for Defendant Belson *s
justification of the pending Sheffield case, their final orders in
the prior appeal would have been required to be reviewed and they
would have been granted relief (in all likelihood).
6a. Plaintiffs allege that further evidence of a conspiracy
to have Defendant Belson assigned to the Sheffield appeal (and to
write the opinion) for the purpose of denying Plaintiffs relief is
the fact that Defendant Belson had prejudged another (and differ-
ent) appeal involving the herein Plaintiffs and was recused or
removed from the appeal; therefore, he ought not have been assigned
to the Sheffield case for that reason alone (and Plaintiffs had
strongly recommended that he not be so assigned by asserting that
he should be recused from the appeal--through a Petition for an
Initial Hearing En Banc).
7. Plaintiffs allege that they were in fact deprived of equal
protection of the law and suffered injury therefrom, as identified
here and in Counts I through IV.
- 26 -
333
DECLARATORY RELIEF SOUGHT
As declaratory relief, Plaintiffs request that the Court i
1. Declare that Defendant Greene's, directed verdict (and the
judgment pursuant thereto) in the case of Alice Sheffield v;
District of Columbia, et. al., CA NO. 9799-87, was unconstitutional
as violative of the Seventh Amendment of the United States Con-
stitution, which guarantees Plaintiffs the right to a trial by
jury.
2. Declare that Defendants Belson, Ferren, and Wagner's affir-
mance of Defendant Greene's directed verdict judgment was unconsti-
tutional as violative of the Fifth Amendment and Seventh Amend-
ment of the United States Constitution.
3. Declare that Defendant Greene exercised racial discrimina-
tion against the Plaintiffs herein during the trial proceedings
in violation of k2 U.S.C. sec. 198I (and sec. 1983)-
U. Declare that Defendant Greene's conduct in governing the
Sheffield case deprived Plaintiffs of Fifth Amendment constitu-
tional rights to due process and equal protection of the law.
5. Declare that the conduct (and treatment of Plaintiffs' appeal)
of or by Defendants Belson, Ferren, and Wagner was unconstitutional
as violative of Plaintiffs' Fifth Amendment rights to due process
and equal protection of the law.
6. Declare that all individual Defendants herein unlawfully
deprived Plaintiffs of their statutory right to civil rights
attorney fees, pursuant to 42 U.S.C. sec. I988 (and 1983) 1 in the
Sheffield case on both the trial and appellate levels.
7. Declare that the District of Columbia, in the Sheffield case,
defaulted (nearly as a matter of law) and it was an abuse of dis-
- 27 -
334
cretion for the trial court to refuse to enter a default judgment
against the District.
INJUNCTIVE RELIEF
As injunctive relief, if necessary, Plaintiffs request*
1. That the Court enjoin the Superior Court of the District of
Columbia from denying Plaintiffs a trial by jury whereby the jury
must return a verdict.
2. That Defendant Greene be enjoined from governing any litiga-
tion in the future involving the herein Plaintiffs.
3. That the D.C. Court of Appeals be enjoined from denying the
herein Plaintiffs a due process and equally protected appeal.
k. That Defendants Belson, Ferren, and Wagner be enjoined from
governing any litigation in the future involving the herein Plan-
tiffs.
OTHER RELIEF
Plaintiffs request the following other relief i
1. That the Court orders that the trial by jury, upon a grant of
relief, take place in Federal court, rather than the Superior Court
of the District of Columbia, especially since the case involves
several Federal claims and could have been brought in federal court
initially.
2. That, alternatively, if the Court does not find a total de-
fault by the District, the Court orders a trial on damages only
- 28 -
335
as to fourC^) Counts of Plaintiffs' Second Amended Complaint,
based on the fact that as to these specific Counts or claims
(i.e., Counts I, II, XIII, and XV), the District could not offer
a viable defense at trial that could defeat the claims.
3. That the Court orders that Plaintiffs herein be paid civil
rights attorney fees for the herein litigation.
See the related cases of Sceva J. Kendall v. John Ferreri. et. al.,
CA NO. and Laurack D. Bray v. James Belson, et. al.,
CA NO. , filed concurrently herewith.
!_"/> 2-,
-*'-. ^L<-^^-<21 I-'' ^-^Ur.<
LAURACK D. BRAY, ESQ. '
Counsel of Record for Plaintiffs
624 17th Street, N.E.
Washington, D.C. 20002
(202) 397-7209
#406336
336
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SCEVA J. KENDALL
Serve at: 2^23 l^th Street, N.E. #2
Washington, D.C. 20002
Plaintiff,
JOHN FERREN, JOHN TERRY, AND MICHAEL FARRELL
Individually and as Judges of the D.C. Court
of Appeals
Serve at: D.C. Court of Appeals
D.C. Courthouse
500 Indiana Avenue, N.W.
Washington, D.C. 20001
6th Floor
Defendants ,
CA
Nc'/z-^e
COMPLAINT
DECLARATORY JUDGMENT AND OTHER RELIEF
Jurisdiction
1. Jurisdiction of this court is invoked pursuant to 28 U.S.C.
sections 1331, 13^3, 2201, and 2202; U2 U.S.C. section 1983? and
the Fifth Amendment of the United States Constitution.
Parties
1. The Plaintiff is Sceva J. Kendall.
2. The Defendants are John Ferren, John Terry, and Michael
Farrell, being sued individually and as judicial officers of the
337
District of Columbia Court or Appeals.
Statement of the Facts
Plaintiff alleges that a brief statement of the pertinent
facts is as follows t
1. Mr. Sceva J. Kendall was convicted and sentenced in the Su-
perior Court of the District of Coliunbia for possession with the
intent to distribute cocaine (PWID). He noted a timely appeal.
2. On appeal, Mr. Kendall, through his Brief, raised and argued
five (5) issues which he asserted required reversal of his conviction
and his acquittali (1) whether the trial court erred in denying Mr.
Kendall's motion to suppress the tangible evidence, where the ar-
resting officers lacked probable cause to make a warrantless arrest?
(2) whether the trial court erred in denying Mr. Kendall's motion
for judgment of acquittal after close of all the evidence, where
there was insufficient evidence at trial to prove him guilty of
PWID beyond a reasonable doubt? (3) whether the trial court com-
mitted reversible error in admitting hearsay testimony of the go-
vernment's so-called informer? (k) whether admission of the so-
called informer's testimony at trial violated the Confrontation
Clause of the Sixth Amendment of the United States Constitution
(and Mr. Kendall's right of confrontation), where Mr. Kendall was
unable to cross-examine and/or confront the informant at trial?
and (5) whether it was plain error (and, therefore, reversible er-
ror) for the trial court to admit into evidence government's Ex-
hibit #^, even in absence of objection thereto? Mr. Kendall ar-
gued that all of the above-mentioned issues should have been de-
cided in his favor and, consequently, would have required or caused
his acquittal.
338
3. The Court of Appeals, through the identified Defendants
herein, or vice-versa, denied Mr. Kendall oral argument on any of
the issues raised, albeit he specifically requested oral argument j
it apparently disregarded his Brief; and, acting positively on the
governmert's "mysterious" motion to remand for a new trial, re-
manded Mr. Kendall's case for a new trial, without deciding or dis-
cussing the issues raised in his Brief on appeal (including the
issue as to sufficiency of the evidence) and through an unpublished
order without comment.
♦NOTE: Mr. Kendall did oppose the government's motion (however, in
his written request for oral argument, he stated that he would
agree to a remand to enter a judgment of acquittal).
k. On re-trial, after bond review, status, and motions, the
government dismissed Mr. Kendall's case.
Count I
42 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFF'S FIFTH AMENDMENT
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.
1. Plaintiff alleges that Defendant Terry, Ferren, and Farrell,
under color of District of Columbia (and District of Columbia Court
of Ap Deals) law deprived him of his Fifth Amendment right to due
process of law. That is, he was deprived of his liberty and the
right to prove his innocence on appeal without due process of law.
2. Plaintiff alleges that the above-named Defendants deprived
him of his liberty and the right to prove his innocence on appeal
without due process by precluding his appeal of issues that would
have caused his acquittal, or, at least, a reversal without a remand
for a new trial, which, in turn, would have caused his freedom from
incarceration (and each day that he remained incarcerated after the
order to remand for a new trial (rather than a reversal or a re-
versal and remand to enter a judgment of acquittal) was a loss of
339
liberty without due process).
3. Plaintiff alleges that his primary purpose for appealling
his conviction was to prove his innocence, that is, that he did
not commit the crime with which he was charged, and because he
did not get to adoress the very issues that would have given him
the opportunity to so prove his innocence, he was, in essence, de-
prived of that purpose and the right of appeal directed thereto .
4. Plaintiff alleges that he continues to suffer injury from his
denied right to a due process appeal ajid from his denied right to
prove his innocence of the crime with which he was charged because
the record does not reflect that he was acquitted or that the
government lacked probable cause to arrest him (which would go to
sealing of his arrest record and civil actions).
5. Further, Plaintiff alleges that the order to remand for a new
trial, without more, was a denial of due process because it pro-
vided no guidance or directions for the new trial as to avoid a re-
petition of error. For example, see Clark v. United States, NO.
89-700, D.C., June 21, 1991, where ". . . Clark is entitled to a
new trial. We briefly address those of Clark's remaining claims of
error which are likely to arise if and when the case is tried
again." The remand was also retaliatory, see Sheffield v. D.C. ,
App. No. 89-369 (D.C. Court of Appeals) (based on counsel's conduct).
6. Plaintiff alleges that he was denied due process by the here-
in Defendants not acknowledging and relying on his Brief to deter-
mine and/or decide the issues raised on appeal.
7. Plaintiff alleges further that the Defendants knew when they
remanded his case for a new trial without addressing the issues of
his denied motions for supression of the tangible evidence and for
judgment of acquittal and of plain error in admitting a government
exhibit (i.e., sufficiency of the evidence to prove guilt) that such
340
conduct was at least improper, based on their ovm (i.e., D.C.
Court of Appeals) case law. See, i.e.. Kind v. U.S . , 529 A. 2d
29^ (D.C. App. 1987)(Mack, J., concurring) where "Under the Double
Jeopardy Clause, remand for retrial is forbidden where the evidence
presented in the original trial was insufficient to convict. (Ci-
tation omitted). ... If asked, a reviewing court must always
assure itself that retrial is constitutionally permitted under the
Double Jeopardy Clause, and if we had not done so here , our remand
for a new trial would be improper." (Emphasis added).
Count II
42 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFF'S CONSTITUTIONAL
RIGHT TO EQUAL PROTECTION OF THE LAW.
1. Plaintiff incorporates by reference all allegations set forth
in Count I as though they were herein alleged.
2. Plaintiff alleges further that Defendants herein, under color
of District of Columbia law, deprived him of equal protection of the
law, by retaliating aga:nst him for his counsel's conduct (Sheffield)
3. Plaintiff alleges that he was at least deprived of equal pro-
tection by having his case being treated differently from the cases
of Brown v. U.S. , No. 86-1276, D.C, May 8, I99I and Cauthen v.
U.S. , No. 89-1216, June 7, 1991, where all three cases (including
the Kendall case) involved anonymous tips, reasonable suspicion,
and probable cause to arrest and where all three cases focused on
the United States Supreme Court case of Alabama v. White, 110 S.Ct.
2412 (1990) as being decisive or instructive.
First of all, oral argument. In both Brown and Cauthen, Ap-
pellants, through counsel, were granted oral argument. Mr. Kendall,
341
who specifically requested oral argument, was denied oral argument.
In Cauthen, oral argument was performed in part by a white student
counsel who requested and was granted the right to orally argue the
case. In the Kendall case, Mr. Kendall had retained (i.e., paid
and incurred costs) an attorney to r3present him on appeal, but the
Court of Appeals denie^i his attorney the right to orally argue his
appeal. His attorney was black.
Second, appellant Briefs and the Court's reliance thereon. In
neither Brown nor Cauthen did the appellants cite nor discuss
Alabama v. White, supra (neither in their Table of Authorities nor
their Argximent section of the Brief — i.e., nowhere in the Brief).
But, in both cases, the Court perfonned an extensive discussion of
White in its written opinion, with Cauthen going so far as to state,
"Alabama v. White. ... on which appellant heavily relies" and
"Appellant argues that the anonymous tip was inadequate under White
because it contained no predictions as to anyone's future behavior
. . . ." (Emphasis here and in original). If the Appellant in
Cauthen indeed "heavily relie(d)" on White as the Court opinion in-
dicates, he certainly did not do so in his Brief (he didn't even
cite White — not to mention cite it as a case chiefly or principally
relied upon). Conversely, Mr. Kendall's Brief specifically cited,
discussed, and principally relied on White in urging reversal and
Mr. Kendall's acquittal. Yet, the Defendants herein not only did
not cite to or discuss White in their remand order, but they also
totally disregarded Mr. Kendall's Brief and argiiments.
Third, the published opinion. In both Brown and Cauthen, the
Court published a written opinion (with analysis) discussing White
extensively, especially in Brown. This causes Appellant's counsel
in both cases to be acknowledged and credited with causing the re-
342
versal (based on and through their written and oral argument). In
iVIr. Kendall's case, the Defendants' herein produced an unpublished
order that cites no cases, not even White, and, that saime unpublish-
ed order facially credits the government with a granted motion
(even though argument in Mr. Kendall's Brief caused the "mysterious"
motion) and makes it appear as if the government was the prevailing
party on appeal and that the government did Mr. Kendall a favor in
moving to remand .
Mr. Kendall alleges that it is particularly striking that the
court's discussion of White (and argument related thereto) in
Brown mirrors the argument in his Brief (i.e., anonymous tip, re-
liability, and credibility — notice the format of the argument in
the Brown and Kendall cases). It is also striking that Defendant
Ferren was a member of the majority panel in Brown who voted to pub-
lish the opinion in that case. Yet, he did not so vote to publish
(apparently) in the Kendall case, where Mr. Kendall himself (through
counsel) (and not the Court) argued and/or discussed White specifi-
cally.
Finally, the majority panel in Brown (including Defendant
Ferren) granted the Defendant's motion to suppress the evidence, but
the panel in Mr. Kendall's case (including Defendant Ferren) voted
to remand the case for a new trial (even though the facts in Mr.
Kendall's case were more compelling for granting the motion to sup-
press than in Brown because Mr. Kendall, in contrast to the Defen-
dant in Brown- -where there was actual possession of contraband on
the Defendant's person at the time of the arrest, did not possess
any contraband on his person when he was seized, i.e., constructive
possession). And, the Brown case was decided before the Kendall
case. Brown was decided May 8, 1991 and Kendall, May 15. 1991*
343
k. Mr. Kendall alleges that part of the Defendants' motivation
for their discriminatory actions in his case was retaliation (to-
wards his appellate counsel, for counsel, on appeal, having
charged a trial judge with racial discrimination--in a separate,
civil appeal, see Alice Sheffield v. District of Columbia, et. al..
App. No. 89-369 (D.C. Court of Appeals)). See also related Complaint
filed herewith, Alice Sheffield, et. al . v. Henry F. Greene, et. al.
CA NO. (1991). NOTE: Because Mrs. Sheffield filed a
Petition for Initial Hearing En Banc, all members of the regular
Court of Appeals were required to read the Brief which contained
the charge and discussion thereof.
ka. Mr. Kendall alleges that other incidents of prejudicial
actions that resulted from retaliation werei (1) after Mr. Kendall
had moved for a release pending appeal and the motion had been de-
nied (even though Mr. Kendall refuted all reasons the government
had argued against the release), the order denying the motion was
sent to a false address, so counsel for Defendant never received it
and Mr. Kendall lost his ordinary right to move for a rehearing of
the denied motion (i.e., time for so moving having expired without
his knowledge); (2) after the court ordered Mr. Kendall's case re-
moved from the March, 1991 argument calendar (i.e., the original
briefing schedule canceled), that order was sent to a false address
as well, so Mr. Kendall's counsel never received that order either;
therefore, and consequently, the time passed for Mr. Kendall to
move for a reconsideration of that action so that the case might be
placed back on the original March, 1991 calendar; and (3) because
the government conceded that his conviction would have to be vacated
and the judgment reversed, Mr. Kendall filed a Petition for a Writ
of Habeas Corpus renewing his request for a release pending appeal.
344
The Court of Appeals refused to materially act on his Petition
(i.e., grant or deny it) until after appellate proceedings were
complete and during re-trial proceedings, and then, acted to dis-
miss the Petition for a lack of subject matter jurisdiction.
Count III
42 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFF'S FIFTH A^iEND^;EKT
CONSTITUTIONAL RIGHT NOT TO BE SUBJECTED TO DOUBLE JEOPARDY.
1. Plaintiff incorporates by reference each and every allega-
tion set forth in Counts I and II, as though they were herein al-
leged.
2. Plaintiff alleges that Defendants herein, under color of
District of Columbia law, willfully deprived him of his Fifth Amend-
ment constitutional right not to be subjected to double jeopardy;
and that he was so subjected to double jeopardy.
3. Plaintiff alleges that because the Defendants did not act on
or address the issue of insufficiency of the evidence on appeal, as
they should have, it allowed the government the right to re-try him
on remand, and it caused the trial court (on remand) to denj his
motion to dismiss the case against him on double jeopardy grounds.
k. Plaintiff alleges that he was subjected to a bond review hear-
ing, a status hearing (at which the government made a plea offer
which Plaintiff refused), and a motions (suppression) hearing (at
which the government dismissed the case), which he would not have
been subjected to if the Defendants would have reviewed the issues
regarding sufficiency of the evidence, and, thereafter, would have
found in his favor (and reversed and remanded to enter a judgment
of acquittal or simply reversed--without a remand for a new trial).
345
Count IV
1*2 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFF'S RIGHT TO COSTS.
1 . Plaintiff incorporates by reference each and every allegation
set forth in Counts I and II, as though said allegations were herein
alleged.
2. Plaintiff alleges that Defendants herein, under color of
District of Columbia law, deprived him of his right to costs pur-
suant to Rule 39 of the D.C. Court of Appeals rules by designating
the government as the prevailing party on appeal (i.e., granted
motion to remand), when in actuality Plaintiff was the prevailing
party (because he received the relief--a type--that he sought on
appeal) .
3. Plaintiff alleges that whether it is by grant of the govern-
ment's motion to remand for a new trial or by direct reversal and
remand for a new trial, the judgment was reversed and he was in
fact, and as a matter of law, the prevailing party on appeal.
k. Plaintiff alleges that in reference to Rule 39 's allowance of
costs where the decision has been reversed on appeal, even if the
remand for a new trial does not necessitate a reversal, a proper re-
view of his issues raised on appeal would have required a reversal
nonetheless .
- 10 -
346
DECLARATORY RELIEF
Plaintiff requests that the Court declare the following!
1. That the Defendants' order to remand for a new trial in the
case of Kendall v. U.S.. App. No. 90-378 (D.C. Court of Appeals)
was unconstitutional as violative of the Fifth Amendment of the
United States Constitution (on due process, equal protection, and
double jeopardy grounds).
2. That for purposes of Rule 39 costs, the decision in the Ken-
dall case was reversed (or alternatively, Mr. Kendall wais the pre-
vailing party), and therefore, costs shall be taxed against the
appellee (United States).
OTHER RELIEF
Plaintiff requests the following other relief t
1 . That the Court perform a de novo review of his Brief and the
Record to determine whether a judgment of acquittal should have been
entered on Mr. Kendall's behalf (and thereby determine his inno-
cence regarding the charges against him).
2. Order, pursuant to the Court's inherent power to do so, that
Rule 39 costs include attorney's fees based on the circumstances of
the treatment of his appeal; and, also, based on special events, orde
that he be paid attorney's fees for all post-appeal matters (i.e.,
re-trial matters) if the Court finds that he should have been ac-
quitted on appeal or that the evidence was insufficient to permit
a re-trial.
3. Order that Plaintiff be paid attorney fees for the herein
347
litigation.
k. Order, if within the Court's jurisdiction, that Mr. Kendall's
arrest record regarding the arrest and conviction in question here,
be expunged or otherwise sealed based on 8 lack of probable cause
by the arresting officers in the case to legally or constitutional-
ly effectuate an arrest.
See the related cases of Alice Sheffield, et. al. v. Henry F.
Greene, et. al., CA NO. , and Laurack D. Bray v. James
Belson, et . al . , CA NO. , filed concurrently herewith.
^^^^ . ^^ ^ns:^ .
LAURACK D. BRAY, ESQ. (y ^~
Counsel of Record for PlVj\itiff
624 17th Street, N.E.
Washington, D.C. 20002
(202) 397-7209
#406336
NOMINATION OF ROSEMARY BARRETT, OF
FLORIDA, TO BE U.S. CIRCUIT JUDGE FOR
THE ELEVENTH CIRCUIT
THURSDAY, FEBRUARY 3, 1994
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:14 a.m., in room
SD-226, Dirksen Senate Office Building, Hon. Joseph R. Biden, Jr.,
chairman of the committee, presiding.
Also present: Senators Heflin, Simon, Moseley-Braun, Thurmond,
Hatch, Simpson, Grassley, and Cohen.
OPENING STATEMENT OF CHAIRMAN BIDEN
The Chairman. The hearing will come to order.
I would like to invite the judge, as well as our two esteemed col-
leagues to the table, if they could. The order in which we will pro-
ceed is Senator Hatch and I have relatively brief opening state-
ments, and then we will invite our colleagues from Florida to intro-
duce to the committee the judge, as well as her small family, and
then we will swear the judge and we will get under way.
The committee is convened to consider the nomination of Chief
Justice Rosemary Barkett, of the Florida Supreme Court, to become
a judge on the U.S. Court of Appeals for the Eleventh Circuit.
Justice Barkett enjoys an impressive background, by any meas-
ure. Her personal story is intriguing, and her professional life is
marked by commitment to excellence, public service, justice and, I
might add, integrity.
Born in Mexico, one of 16 children. Justice Barkett came to the
United States as a child, speaking only a few words of English. As
a young woman, Justice Barkett became a nun, a vocation she con-
tinued until 1967. During her time in the convent, she was known
as Sister Michael, reminding me of my last mother superior, Sr.
Michael Murray. I hope you are going to be more lenient on me
than she was. And she was also a sister of St. Joseph's. [Laughter.]
During this time, while the nominee taught in elementary and
secondary schools, she also earned her B.S. degree suma cum laude
from Spring Hill College. Justice Barkett then entered law school
at the University of Florida. She finished at the top of her class,
the class of 1970, earning an award for the outstanding student,
the outstanding graduate.
Justice Barkett had a distinguished 9-year career as a lawyer in
private practice. In 1979, then Gov. Bob Graham appointed her to
(349)
350
fill an unexpired term on the bench as a trial judge. She served as
a trial judge until 1984, when Grovemor Graham appointed her to
the court of appeals. One year later, Gk)vemor Graham appointed
Rosemary Barkett to the Florida Supreme Court, making her the
first woman to sit on the court.
Facing an election to retain her seat on the supreme court in
1992, Justice Barkett garnered a number that any one of us in this
body would love to get within 10 points of; 61 percent of the people
of her State decided that she should retain that seat.
Following that election, her colleagues on the court named her
chief justice. And I might add, a number of issues raised that will
be raised here today about your view on the death penalty and the
rest were raised in your State of Florida when you sought reelec-
tion.
One of the things I found somewhat interesting is Florida has
been, generally speaking, a State that has been, if not preoccupied,
spent a lot of time on the criminal justice system and concern
about crime. The fact that 61 percent of them thought you should
go back on the bench obviously says something about what your at-
titude on these issues are.
Thus, Justice Barkett has observed the practice of law from the
perspective of a litigant, as a trial judge, and ultimately undertak-
ing the task of appellate review. Her more than 20 years in the
legal profession, her thousands of cases on the supreme court, court
of appeals, trial court, and private practice provide her with a
wealth and a breadth of experience to take with her to the eleventh
circuit.
One mark of esteem she held over the years is the fact that, in
1992, the Academy of Florida Trial Lawyers created the Rosemary
Barkett Award, which is presented annually to a person who has
demonstrated outstanding commitment to equal justice under the
law.
I mention almost as an aside that, by unanimous vote, the Amer-
ican Bar Association's Judicial Selection Committee rated Justice
Barkett well qualified to sit on the eleventh circuit. They cannot
rate it any higher than that.
I know that critics of Justice Barkett, both during the retention
election and now here, have raised concerns about the nominee's
views on the death penalty. As everyone knows, I support the
death penalty, and I have looked carefully at this issue. I hope Jus-
tice Barkett's record will be considered in its entirety, especially
given that, during her 8 years on the court, she has participated
in literally hundreds of death penalty cases.
I will look at Justice Barkett's complete record and focus on
whether she will apply the law in accordance with the standards
and precedents that bind eleventh circuit judges.
A distinction. Judge, I am going to ask you to make is as to how
you view the distinction between being a supreme court justice in
the State of Florida, looking at the Florida Constitution, as well as
the U.S. Constitution, and what you believe the role in your view
of stare decisis, how it binds you or not as an eleventh circuit court
of appeals judge in the Federal system.
351
I will question Justice Barkett about her role on the State su-
preme court and ask her to comment on a distinction, as I said, be-
tween those roles and the role of a Federal appellate judge.
Further, I am interested in your views of your obligation to ad-
here to precedent and your view on the restrictive roles of the
courts and legislatures in determining the meaning of the statute.
I also will ask you. Justice Barkett, to make a distinction for the
record as to whether or not applying the law, whether it is a death
case or any other case, whether your obligation as a supreme court
justice for the State of Florida requires you to look at the Florida
Supreme Court where it may or may not diverge from the U.S. Su-
preme Court or the U.S. Constitution.
Throughout the 12 years of Republican nominees to the Federal
bench, I have maintained that three factors should govern my deci-
sion for a lower court judge. Lower meaning lower than the Su-
preme Court. I view the Supreme Court the only court in the land
that can overrule its own decisions.
First, does the nominee have the capacity, competence, and tem-
perament to be a court of appeals judge; second, is the nominee of
good character and free of conflicts of interest; and, third, would
the nominee faithfully apply the Constitution and the precedents
of the Supreme Court.
I have voted for some judges with whom I hardly have anything
in common, whose view of constitutional interpretation vary sharp-
ly from mine, but I believed them to be honorable people who have
a view of stare decisis and would apply the law as the court has
seen it. I will apply this standard in the case of Justice Barkett,
as well.
So I welcome you, Justice Barkett. I look forward to seeing you,
and I hope that — I say this to all nominees who come before the
committee — I hope that your graciousness and cordiality will not
cease once the lifetime robe is placed over your shoulders.
I see one of the leading lawyers in the State of Florida smiling.
He knows what I mean. I fmd that all nominees are nice to Sen-
ators while things are moving on, but after they get confirmed, I
am almost reminded by all of them how they are not politicians,
when an awful lot of them got their jobs because they were politi-
cians. At any rate, excuse the aside, but it is something I often
speak to and I should not.
I yield to my friend from Utah, the ranking member.
OPENING STATEMENT OF SENATOR HATCH
Senator Hatch. Thank you, Mr. Chairman.
I welcome you. Justice Barkett, and I certainly welcome our es-
teemed colleagues, both of whom are very strongly supporting you,
and that is something that we take great notice of, as well as the
fine person you are. I welcome you to the committee and I con-
gratulate you on the honor of being nominated to this very pres-
tigious position by President Clinton.
Chief Justice Barkett and I had an opportunity to meet, more
than once, and I enjoyed our conversations in the past, and I have
absolutely no doubt as to your competence and ability.
Where I am concerned, however — and I should state it straight
up — is about your judicial philosophy, and I intend to explore some
352
of these concerns today and, of course, allow you the full oppor-
tunity to respond. To enable you to do so, I have provided you with
a list of cases that I probably will explore with you, and hopefully
that has been helpful to you.
In my view, Mr. Chairman, the political and policy views of the
judicial nominee are not relevant to evaluating such a nominee.
What is important is that the nominee interpret the law according
to the meaning of its Framers. Differences over such meaning obvi-
ously can occur.
But if the touchstone of interpreting our laws is not the intent,
the meaning of the Framers of the law, then a judge is simply leg-
islating his or her own policy preferences or political preferences
from the bench. A judge who does this usurps the role of democrat-
ically elected legislators reserved to them by the Constitution.
I should also note that in the case of the Constitution, while its
meaning in my view remains unchanged, it is clearly applicable to
changing circumstances. Just as there is a fundamental distinction
between politics and judges, there is a basic difference between a
political litmus test and an inquiry into a nominee's jurisprudential
outlook.
An essential part of my constitutional duty as a Senator in the
confirmation process, and certainly as ranking member on this
committee, is to ensure that judicial nominees will faithfully inter-
pret and enforce the Constitution and other laws of the United
States.
Now, that does not mean, of course, that a nominee must agree
with my interpretation or any other Senator's interpretation in all
cases. I have voted to confirm judges nominated by Republican and
Democratic Presidents who had ruled in other judicial positions or
who I could anticipate would rule differently from me in a good-
faith application of the law in more than a few instances. Indeed,
I voted to confirm such a nominee, Ruth Bader Ginsburg, for the
Supreme Court last year.
It does mean, however, that in fulfilling their duties, judges need
to keep their political and policy views out of the interpretation of
the law. If a nominee's record or responses give me reason to doubt
a nominee's ability or willingness to do so, I cannot vote to confirm
that nominee, no matter how much I may like the person. In this
case, I happen to like Justice Barkett very much.
Accordingly, there are a range of jurisprudential issues that con-
cern me. A nominee's interpretation of the equal protection clause
and the due process clause of the Constitution, for example, are in-
dicators of a judge's overall judicial philosophy, and, if a lower
court judge, certainly are indicative of fidelity to precedent.
A nominee's view of the community's ability to control obscenity
is important. A nominee's judicial outlook on enforcement of the
criminal law is also very important, especially at this time when
this is probably one of the most important issues in America today.
I think it has been a very important issue for most of the last 20
years, certainly all of this country's existence, but especially the
last 20 years.
Further, let me emphasize that, with regard to the criminal jus-
tice arena, I am concerned not just with the death penalty, as some
people seem to believe. In fact, that may be, as important as it is,
353
maybe one of the lesser concerns that I have. I am concerned with
the broad array of criminal law issues.
If judicial nominees, for example, are prone to invent hyper-tech-
nical rules that hamstring law enforcement and that cripple the
ability of communities to police themselves, if they misuse or ignore
relevant precedent or the statutes themselves in a manner favoring
criminal defendants and convicts, then I would question whether
they have the jurisprudential outlook necessary to be a Federal
judge, and certainly a circuit court of appeals judge.
Moreover, let me note that, with respect to the death penalty it-
self, I am not only concerned about a nominee's views about the
constitutionality of the death penalty in theory, nor is a proper in-
quiry about a nominee's judicial outlook in this area ended merely
by noting that the nominee has upheld the death penalty in some
or even a number of cases, where even the most activist of judges
cannot avoid its imposition.
If a nominee exhibits a clear tendency to strain for unconvincing
escapes from the imposition of the death penalty in cases where the
death penalty is in fact appropriate, then that raises concerns in
my mind about the nominee's fidelity to the law, no matter how
many times the nominee may have upheld the death penalty in
other cases.
In an earlier hearing, I closely questioned two judicial nominees,
one of whom I later supported and one of whom I opposed. I am
looking forward to the answers to my questions and will weigh
them, of course, in the evaluation of the nominee. My natural tend-
ency is a desire to support the nominee. My natural tendency is a
desire to support the nominee of the President of the United
States. He won the election and he ought to be able to make this
choice. Frankly, I think my record here on the committee has
shown that through the years.
That basically would be my feeling this morning, Mr. Chairman.
I appreciate you giving me this time.
The Chairman. As a former chairman of this committee. Senator
Thurmond would say I hope you follow your tendencies. [Laughter.]
Senator Hatch. I probably will.
The Chairman. Senator Moseley-Braun, do you have a comment
you wish to make?
OPEMNG STATEMENT OF SENATOR MOSELEY-BRAUN
Senator Moseley-Braun. Well, Mr. Chairman, I had not ex-
pected to make an opening statement, except to welcome Judge
Barkett to this panel. I look forward to her testimony. Her creden-
tials seem to be impeccable, if not outstanding, and I am delighted,
frankly, if I may add a personal side, to see a woman going on the
Court of Appeals.
The Chairman. Thank you.
Senator Cohen, I am sorry. You have been here the whole time.
You were here before everyone. I apologize.
OPENING STATEMENT OF SENATOR COHEN
Senator Cohen. Thank you, Mr. Chairman.
I am going to refuse to follow stare decisis in this case. I am
going to forego the precedent of making a long statement. I wel-
354
come the Justice and look forward to hearing from both of our col-
leagues about your character and qualifications to serve on the
court.
Thank you very much.
The Chairman. Thank you.
Judge the usual precedent is only the chairman and the ranking
member get to say anything. Maybe we will reinforce that.
All kidding aside, let me invite our friend, a former Governor,
the senior Senator, Senator Graham, to make any comments he
wishes to, and then we will ask you to speak to us, Connie.
STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM
THE STATE OF FLORffiA
Senator Graham. Thank you very much, Mr. Chairman, Senator
Hatch, other members of the committee.
We appreciate the opportunity to be here today and to introduce
to you a distinguished Floridian, Justice Rosemary Barkett, a
nominee of the President for the Eleventh U.S. Circuit Court of Ap-
peals.
Mr. Chairman, in your opening statement, you gave a substan-
tial amount of the history of Justice Barkett, which is also con-
tained in my statement. So in an effort to avoid repetition, I would
like to ask that my full statement be included in the record.
The Chairman. Without objection, it will be.
Senator Graham. I will omit those parts that are redundant to
what the Chairman has already placed in the record.
I would like also to indicate that the Member of Congress who
represents the Tallahassee area, the city in which the chief justice
now lives and carrying out her responsibility. Congressman Pete
Peterson, had intended to be with us today. A conflict in his sched-
ule in the House prevented him from doing so, and he asked if I
would convey to the committee his strong support for Justice
Barkett.
The Chairman. Thank you. It will be noted.
Senator Graham. Mr. Chairman, I have had the great fortune of
knowing Justice Barkett personally for more than 15 years, and in
that time I have been profoundly impressed by her intelligence, her
compassion, her curiosity of mind, her humility of spirit.
It has been said that Justice Barkett's life is a commentary on
the American dream. You have outlined previously a life that
stretches from a child bom of immigrant parents in Mexico, who
came to the Untied States while she was still a young girl, who has
lived through many experiences that have given her an unusual
breadth of understanding of the human experience, a background
which she has applied ably throughout her judicial career.
She also comes from a very large family. There are approxi-
mately 35 members of her family who join us today. I would like
to ask if they would stand.
The Chairman. Maybe just ask the ones who are not members
of her family. [Laughter.]
Senator Graham. That might result in less disruption, Mr.
Chairman. But I wonder if I could ask the members of her family
to stand.
The Chairman. We would be honored to meet the family.
355
Senator COHEN. Is this just the immediate family? [Laughter.]
Senator Graham. This is the immediate family.
Just to mention her most immediate members of the family who
are here, her brother Assad Barkett, Jr., of Homestead, FL; her sis-
ters, Irma Elder of Detroit; Chati Barkett of Homestead; and Car-
men Doumar of Fort Lauderdale are here. Unfortunately, Justice
Barkett's parents are not among the family here today. Her aged
mother, who I understand is about to celebrate her 75th wedding
anniversary, is ill, and her husband is at her side. But this is cer-
tainly one of the proudest moments for the parents and all of the
members of Justice Barkett's family.
As you mentioned, Mr. Chairman, I had the privilege on three
occasions to appoint Justice Barkett to positions of increasing re-
sponsibility in the Florida judiciary.
I think one of the impressive things about her judicial service is
that shortly after I had appointed her to a position, she was then
selected by her peers to be their leader. For instance, I appointed
her in 1979 to be a trial judge on the fifteenth judicial circuit,
which is primarily in the Palm Beach County area. She was soon
elected as the chief judge by her peers. She has now been elected
by her peers on the Florida Supreme Court to be not only the first
woman on the court in our State's history, but the first chief justice
in our State system.
As you indicated, Justice Barkett has received a number of
awards and recognitions, including eight honorary doctorates, nu-
merous other awards, including the Lifetime Achievement Award
presented by the Latin Business and Professional Women and the
Hannah G. Solomon Award presented by the National Council of
Jewish Women.
As you indicated, Mr. Chairman, the Academy of Florida Trial
Lawyers has established a Rosemary Barkett Award, which each
year recognizes a person who has demonstrated outstanding com-
mitment to equal justice under law. I might say that the first recip-
ient of that award was Congresswoman Carrie Meek, who you
know well and can evaluate how significant it is to have a person
of her quality be recognized by receiving an award named for Jus-
tice Barkett.
Justice Barkett has served on numerous commissions and task
forces, including the American Bar Association's Steering Commit-
tee on Unmet Legal Needs of Children. She has been asked by the
Florida Legislature to chair several major commissions, including
one to reform guardianship law, another to study status and needs
of Florida's welfare children.
Throughout her career, Justice Barkett has displayed not only a
remarkable combination of intelligence and integrity, but also an
uncompromising respect for the law. In Florida, she is respected
statewide as a judge who treats all people with equal dignity, with-
out arrogance or condescension.
Mr. Chairman, you pointed out a significant fact, and that is
that, under Florida law, every 6 years members of the Florida Su-
preme Court undergo a retention campaign in which their names
are placed before the people. They do not have an opponent other
than the record that they have compiled as a member of the court.
356
In November 1992, Justice Barkett was engaged in such a reten-
tion campaign. Many of the issues that I anticipate will be raised
during this hearing were the focal points of that campaign. The
people of Florida, a State which is very committed to effective
criminal justice and a State that takes the attitudes of its judges
very seriously
The Chairman. I would say conservative on this issue.
Senator Graham [continuing]. Had an opportunity to hear all of
the commentary and to evaluate Justice Barkett. After that cam-
paign, 61 percent of the people of Florida determined that it was
in their interest and in the interest of the citizens of Florida to re-
tain Justice Barkett. To me, that is one of the most persuasive
statements of her judicial qualifications and the public confidence
in her integrity.
Mr. Chairman, I have a package of 25 editorials and other arti-
cles supporting Justice Barkett. Every major newspaper in Florida,
people who know her well, have endorsed her nomination. I would
like to include these articles in the record.
The Chairman. Without objection, they will be included.
[For the articles referred to, see Submissions for the Record fol-
lowing this hearing.]
Senator Graham. As I say, I am aware of the issues that have
been raised about Justice Barkett's judicial philosophy. I find it
particularly difficult to understand the allegation that she has not
carried out her judicial responsibility under Florida's death pen-
alty.
Like the chairman and most members of this committee, I sup-
port the death penalty. As Governor, I signed over 100 death war-
rants. I was concerned with the judiciary in our State, which would
have a responsibility in carrying out that law.
Chief Justice Barkett has demonstrated in more than 200 cases
her ability to enforce the death penalty. Justice Barkett will fairly
carry out the law. Justice Barkett's commitment to the law has
made her one of Florida's most competent and trusted jurists. I am
confident that those characteristics will make her a superb addition
to the Eleventh Circuit Court of Appeals.
Thank you, Mr. Chairman.
[The prepared statement of Senator Graham follows:]
Prepared Statement of Senator Graham
Mr. Chairman, I am delighted to be here today to introduce Chief Justice Rose-
maiy Barkett, as a nominee for the 11th U.S. Circuit Court of Appeals.
I have had the great fortune of knowing Justice Barkett personally for more than
15 years, and in that time, I have been awed by her inteUigence, her compassion,
her curiosity of mind and her humility of spirit.
To quote the New Yorker Magazine, Justice Barkett's life is a gloss on the Amer-
ican dream.
She was bom in Mexico in 1939. When she was five, her family gave up a pros-
perous business, emigrated to the United States and settled in Miami to begin a
new life.
The Barkett family has always been very large and very close. As you can see.
Justice Barkett has a lot of proud family members and friends.
Among the 26 relatives who came today to be with Justice Barkett are her brother
Assad Barkett, Jr. of Homestead, Florida; and her sisters, Irma Elder of Detroit,
Michigan; Chati Barkett of Homestead; and Carmen Doumar of Fort Lauderdale.
Unfortunately, Justice Barkett's parents couldn't make it from Florida today. Her
mother is ill and her father wanted to stay by his wife's side. But this is certainly
one of the proudest days in the lives of these two immigrants.
357
Justice Barkett grew up in Miami. After graduating from high school, she joined
a convent and worked as an elementary and high school teacher for several years.
After teaching school for several years, she graduated summa cum laude from
Spring Hill College in Mobile, Alabama. Then, after leaving the convent, she at-
tended the University of Florida Law School, where she graduated near the top of
her class in 1970.
Justice Barkett worked for several years as an associate and then a partner at
Parish & Parish, a West Palm Beach trial law firm. She also worked for a year as
a sole practitioner in West Palm Beach.
In 1979, while serving as governor, I appointed her as Trial Judge for Florida's
Fifteenth Judicial Circuit, where she impressed her peers, who elected her chief
judge of the circuit.
She served in that position with distinction until 1984, when I appointed her Ap-
pellate Judge for Florida's Fourth District Court of Appeals.
In 1985, I appointed Justice Barkett to the Florida Supreme Court. She was the
first woman to serve on that court and was again chosen by her peers, this time
to be Chief Justice in July 1992.
Justice Barkett has received eight honorary doctorates and numerous other
awards, including the Lifetime Achievement Award presented by Latin Business
and Professional Women and the Hannah G. Solomond Award, presented by the Na-
tional Council of Jewish Women.
The Academy of Florida Trial Lawyers has established a "Rosemary Barkett
Award," which it presents each year to "a person who has demonstrated outstanding
commitment to equal justice under the law." The first recipient of that award was
Congresswoman Carrie Meek.
Justice Barkett has served on numerous commissions and task forces, including
the American Bar Association Steering Committee on the Unmet Legal Needs of
Children. She has also been asked by the Florida legislature to chair several major
commissions, including one to reform guardianship law and another to study the
status and needs of Florida's welfare children.
Throughout her career, Justice Barkett has displayed not only a remarkable com-
bination of intelligence and integrity but also an uncompromising respect for the
law. In Florida, she is respected statewide as a judge who treats all people with
equal dignity and without arrogance or condescension.
Every six years, Florida's Supreme Court members undergo a retention campaign.
In November 1992, Justice Barkett retained her seat by a margin of more than 60
percent. That is one of the most persuasive statements of her judicial qualifications
and public confidence in her integrity.
Mr. Chairman, this is a package of 25 editorials and other articles supporting Jus-
tice Barkett. Every major newspaper in Florida has endorsed her for this judgeship.
I would like to include these articles in the hearing record.
I am aware of issues that have been raised aoout Justice Barkett's judicial philos-
ophy. I find it particularly difficult to understand the allegation that she has not
carried out her judicial responsibility under Florida's death penalty. The facts are
Chief Justice Barkett has demonstrated in more than 200 cases her ability to en-
force the death penalty. Justice Barkett will carry out the law.
Justice Barkett's commitment to the law has made her one of Florida's most com-
petent and popular jurists. And I am confident that those characteristics will make
her a superb addition to the 11th Circuit Court of Appeals.
The Chairman. Now we will hear from a good friend of this com-
mittee and a fellow who we worked with very closely in the last
6 years in judicial appointments, Senator Connie Mack.
Welcome, Connie.
STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM
THE STATE OF FLORIDA
Senator Mack. Thank you, Mr. Chairman.
I appreciate those comments. There was a lot of action and activ-
ity with respect to Federal judges in the State of Florida in the
first 4 years, and, as I have expressed on many occasions, I appre-
ciate this committee's responsiveness to the needs of our State.
Mr. Chairman and members of the committee, today I am
pleased to join Senator Graham in introducing a fellow Floridian,
358
Chief Justice Rosemary Barkett, as nominee for a seat on the Elev-
enth Circuit Court of Appeals.
Last fall, I undertook an in-depth evaluation of Justice Barkett's
qualifications for this position, because, frankly, with the exception
I think of maybe one occasion, we had not really spent any time
together, and I was not readly aware of her background.
As a result, I spoke with a number of respected Florida attor-
neys, both Democrats and Republicans alike. I reviewed her deci-
sions and met with the Chief Justice at length on two separate oc-
casions to discuss her judicial decisions and the nomination.
As I said when I announced my support for the chief justice, I
found her to be a decent, caring, experienced, and intelligent jurist,
whose personality undoubtedly has been forged from her life's expe-
riences.
As Senator Graham and the Chairman have indicated. Justice
Barkett has led a remarkable life. She was bom in a small town
in Mexico, moved to Miami at a young age, entered a Catholic con-
vent at the age of 17, and became a U.S. citizen at 19. She later
graduated from the University of Florida's College of Law and
began a distinguished career.
Justice Barkett and I strongly differ on some subjects. I cannot
deny that. I believe that people can have strong intellectual dif-
ferences, but both opinions can be built on reasonable foundations.
Even though I disagree with some of the Chief Justice's conclu-
sions, I respect her judgment and her integrity.
As the committee reviews the nomination of Justice Barkett, I
ask that it consider these questions: Is she a capable jurist? The
answer, in my opinion, is yes. Do her judicial decisions fall within
reasonable philosophical bounds? Yes, they do. Is she a judge who
has represented the people of my State on our supreme court with
integrity and honor? The answer again is yes.
I believe Justice Barkett will bring to the eleventh circuit a dem-
onstrated capacity for intellectual curiosity, for fair-minded and ro-
bust debate, and for honesty, all of which will serve our Federal ju-
diciary well. Chief Justice Barkett deserves to be confirmed. I ask
the committee to move quickly on the nomination to fill this va-
cancy on the Eleventh Circuit Court of Appeals.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
I might add I appreciate the way in which you have handled this
nomination. Senator. You were forthright with the committee. You
did not know enough about the Justice and you wanted to have
time to evaluate whether you were for or against. Occasionally,
Senators in both parties will say things like that to me, and I think
maybe their real reason is to keep things from moving forward. In
your case, as you recall, neither of us even questioned your motiva-
tion and you did your checking. Had you come back and said you
were opposed or supportive, it would not have mattered, because
you would have been consistent with what you said, you wanted to
take a look. We appreciate that. You always deal with our commit-
tee that way and we appreciate it.
Judge, I am going to ask you to stand and be sworn and invite
you to make any statement you want, and then we will begin the
questioning.
359
Do you swear that the testimony you are about to give will be
the truth, the whole truth, and nothing but the truth, so help you,
God?
Justice Barkett. I do.
TESTIMONY OF HON. ROSEMARY BARKETT, OF FLORIDA, TO
BE A U.S. CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT
The Chairman. Welcome, Judge, and the floor is yours, if you
wish to make any statement. My colleagues, as you know. Justice,
they have a thousand other things they have got to do and other
hearings, and so we appreciate them being here and that is why
they are leaving.
Justice Barkett.
Justice Barkett. Thank you very much. Senator.
I do not have an opening statement, but I would like to just say
one or two things and introduce the people who are here who have
gone to a great deal of trouble to be here.
I have been blessed in two major ways. As you have heard, we
are members of a family who came to this country and have been
extraordinarily blessed by the opportunities that it has provided
not just to me. You all talk about a remarkable life, but if you had
the opportunity to hear the stories of the people or individuals who
are behind me, you would be probably doubly or triply impressed.
There are two members of my family who are not here, my par-
ents. Once again, if you thought any of our lives are remarkable,
I think hearing the factors involved in being double immigrants,
having been bom in Syria and immigrated in their youth with one
or two children
The Chairman. What was your first language when you came to
Justice Barkett. Spanish, Senator. My parents were bom in
Syria, immigrated when they were in their twenties, with one or
two children, to Mexico. They spent some 20-plus years, 25 years
in Mexico, where I was born and many of my sisters were born,
and then immigrated again after the Second World War. So their
life is truly remarkable. My father is 94, and my mother is 88.
They would have been here, had the cold weather and my mother's
failing health not precluded it, and then I surely would have wor-
ried about any hostile question that may have been asked, I have
to tell you.
Senator Hatch. You think you would worry, you can imagine
how we would feel. [Laughter.]
Justice Barkett. In March, they will be celebrating their 75th
wedding anniversary, and I think their story is ten times more re-
markable than anybody that is here.
My father is one of many brothers and cousins who immigrated
here, and their descendants are represented in the people who are
here in this room. We began approximately 26 years ago to have
a family reunion in Vero Beach, FL, which is in the middle of the
State. Many of my family members are from Jacksonville, and
many are from Miami. We meet in the middle, and there has not
been a year, I do not think, where the numbers of the immediate
family, my father's brothers and his cousins and their descendants,
do not number in excess of 100.
360
Over the 26 years that we have been doing this, we have become
much closer than most famihes. Our cousins have blended to be
extra sisters and brothers, our aunts and uncles are like surrogate
parents who feel the great responsibility of correcting you when
your parents are not around, and many times when they are
around, so you are corrected six or seven times for the same of-
fense.
The Chairman. I know the feeling.
Justice Barkett. I have friend here. In my family, there are not
outsiders. My family accepts our friends, those of all of us as part
of the family, so that everybody that is here to me is a member of
my family.
I also have to say one other thing before I just read their names
to you, because they have made a great effort to come from Florida
in the winter, and that is, lest the committee think that its impor-
tance is exaggerated, this family uses every — we do this for gradua-
tions, birthdays and every other event, where
The Chairman. Use up all those frequent-flyer tickets?
Justice Barkett. Well, we come together every time an occasion
even remotely warrants it, where there is any pain that might
occur or any celebration. I know that everybody hopes it is going
to be the latter in this instance. So I appreciate your letting me
take a couple of minutes to read the names of the members of my
family who have made the effort.
People ask you if you are nervous here, and I am not. The only
emotion that I feel today is just a tremendous gratitude for the peo-
ple that are here.
The Chairman. Take your time. Justice.
Justice Barkett. It is just really neat that they did this. My sis-
ters, of course, Irma Elder and Chati and Carmen Doumar have
been introduced, as well as my brother Assad Barkett. I should not
tell you this, but he is approximately 20 years or so older than I
am, and his children are sort of like my brothers and sisters, but
his wife, who is also not here, is helping take care of my parents
and is not well enough to have made the trip, is as much a sister
as any of my sisters have been, and I wish that she were here.
I do not want to take up a lot of time, but I just feel like I need
to read their names.
The Chairman. Just take your time. This is one shot, just the
one shot you have.
Justice Barkett. I will not bore you with how they are related,
but let me just go down the list and say that Steve Doumar is here,
Johnny Barkett and Sybill his wife, my niece Mansura Crump, my
cousins Georgia Abdelnour and Mary Barket and Julia Barket, my
aunt Lil Barket, Frances Joseph and Louise Korey and Neddie
Lewis, Richard Crump, Robin Marques and Michael Marques — I
hope little Michael made it — Lori Nation, and my grand-nephews,
we are like three or four generations, my nephew Johnny's children
are here, Johnny Barkett and Dee, and I guess Leslie got to stay
home.
The Chairman. Who is the youngest one in the group? There you
go. What is your name? OK, John. In these hearings, the youngest
member of the family in attendance has the free run of this place.
Seriously, if you want to get up and head back here, I think we
361
have got some candy and stuff back here. You can do everything
but question, and occasionally we allow that to happen. [Laughter.]
Senator Hatch. Yes, we will consider that.
Justice Barkett. Thank you, Senator.
Susan Albert, Kristie Milo, Saralyn Korey, Katie Korey, Dee
Barkett, John David Baxton, Fr. Michael Soukar. I have to then go
into my extended family. I could not be more pleased to have mem-
bers of my staif who are here: Chet Kaufman, Professor Steve Guy,
from Florida State University's College of Law. I almost said the
wrong name.
The Chairman. I understand how that could be dangerous in
Florida.
Justice Barkett. Yes, in my State, especially.
Debbie Hulls, who is my assistant judicial assistant, who has be-
come like another sister to me; my friends Gail Nelson, Alexander
DeBlassio, Jamie Kevees, Janet Studley should be here, Doug
Hughs, Kim Meyers, Scott Rogers, Nina Weinstein, Gail Nelson. Of
course, I could not be more delighted to have with me, who has
been of enormous support, Chesterfield Smith, whose example has
been
The Chairman. We all know Chesterfield. Welcome, Chesterfield.
It is good to have you back.
Senator Cohen. Mr. Chairman, could I inquire, are those books
the family genealogy that you have in front?
Justice Barkett. No, sir. They would be much more extensive.
Senator Moseley-Braun. Actually, I was going to ask the Chair-
man if he would inquire which relatives are from Illinois.
The Chairman. There is bound to be someone from Illinois.
Justice Barkett. I do. Lori, where are you?
The Chairman. There you go. Would you report after school,
please? [Laughter.]
Justice Barkett. Thank you, Senator. I just want to say thank
you to all of them for coming. Everything that I have done right
in my life has been an emulation of the things they taught me, and
whatever I have done wrong I take full responsibility for.
Thank you for your patience in letting me do that.
The Chairman. It is a great honor. One of the things that I think
we so seldom pay attention to, we are here in these halls and in
this great institution, which is not because on occasion of our con-
duct and because on occasion of the nature of the system is not al-
ways looked to as such a great institution, but it truly is a phe-
nomenal honor for anyone to be nominated to the Court of Appeals,
and this is an occasion that warrants your presence.
I hope those of you who do not know Washington well, I know
you are anxious to go back because of the weather, but I hope you
get a chance to actually feel the ambience of this great city and
these buildings and these halls that are yours. It is worth seeing.
It is worth taking the time. It is a reflection of the great institu-
tions that were wrought a long time ago.
I have only one more question relating to genealogy. Of the 16,
what number are you?
Justice Barkett. I am second from the bottom. Senator.
The Chairman. Second from the bottom. One last question, the
only other question I will ask you about your previous occupations:
362
When you were a nun in the Sisters of St. Joseph, were you issued
a clicker?
Justice Barkett. No, Senator, just a ruler to rap appropriate
knuckles. I hope it will not be necessary this morning. [Laughter.]
The Chairman. My ears were never this long before I went to
Catholic school, and my small hands were in fact not as rough on
the back before I attended Catholic school, so I understand.
If I ask you anything or if I — the press will know I have had a
flashback, if I start saying, "yes, sister," or "no, sister" to your re-
sponses, but I will try not to do that. I will try to remember my
role.
Justice Barkett. Senator, there were, I am told, some judges on
the fifteenth judicial circuit when I was chief judge there who
sometimes had the tendency to refer to me as "mother superior."
[Laughter.]
The Chairman. Let me get serious for a moment here. Justice
Barkett, in your 8 years on the Supreme Court, you have upheld
the death sentence in more than 200 cases. As our research shows,
200 times death cases have come up to you involving roughly 150
defendants. Is that correct?
Justice Barkett. I am told that the numbers are closely to ap-
proximately 275 or 276 times that there has been an affirmance of
the death penalty in which I have voted with the majority. If you
are counting only individuals, rather than double cases, it is some-
where in the neighborhood of 150 defendants to 200. That is a dif-
ficult number to ascertain, because a lot of defendants have the
same name, but somewhere in the neighborhood of 150 to 200 de-
fendants, I believe.
The Chairman. So Florida has a death penalty statute, correct?
Justice Barkett. Yes, it does, Senator.
The Chairman. Can you tell me whether or not there is discre-
tion on the Florida statute for a judge to make a judgment, a trial
court judge to impose the death penalty where the jury may come
back with a life sentence after conviction? I know you are not now
a trial court judge.
Justice Barkett. Yes, Senator.
The Chairman. But tell me what discretion a trial court judge
in Florida has relative to the death penalty as a sentence.
Justice Barkett. In the Florida statutory scheme, the jury
makes a recommendation to the judge and the judge then has the
option of following the recommendation of life imprisonment or of
imposing the death penalty.
The Chairman. Even if the jury does not recommend death?
Justice Barkett. Yes, Senator. But prior to my joining the court,
the court had addressed the question of under what standards can
a judge overrule a jury's recommendation of life, and the standard
is a very stringent standard, and the cases interpreting that stand-
ard are also very stringent, so that the court in a case called Tetter
V. State has said that only when no reasonable juror could possibly
have imposed the death penalty, may a trial court judge reverse
the jury recommendation of life and impose a death sentence, and
that has been the continuing law of my State on that question.
The Chairman. Reasonable judges, I suspect, as reasonable
members of the Senate, can disagree with some of the judgments
363
that you have made or not made in those 275 death cases. As I un-
derstand, among the more than 600 death penalty appeals you
have confronted in the Florida State Supreme Court, there may be
cases in which you have upheld the death penalty that I or others
here may not have, and, likewise, there may be cases in which you
have voted to reverse the imposition of the death penalty, imposing
life instead of death which may be disagreed with by members of
the committee, including me.
I am not sure, quite frankly, there is much value in pointing out
individual cases, so long as the overall record demonstrates willing-
ness to apply the law. Now, in your approach to judging, how do
you see your job of interpreting our Constitution and the laws of
the State of Florida and reviewing their application to the facts?
That seems to me to be the question that I want to know about
how you approach the business of judging.
In that regard, I would like to discuss with you three areas:
First, the difference between your role as a State Supreme Court
Justice and your role on the court of appeals; and, second, the role
of precedent in judging as you view it; and, third, the respective
role of courts and legislatures in determining the meaning of the
statute.
You currently serve as Chief Justice of the State of Florida, the
highest court in the State of Florida, the ultimate arbiter of dis-
putes arising under the State's Constitution and laws. I have re-
viewed many, though certainly not all, of the 3,000 opinions you
have written personally, and the 12,000 cases in which you have
participated during your 8 years on the court. I might add that you
have kept our investigative staff very busy, because of the number
of cases that you have written and/or participated in.
In many of those cases, litigants invoked provisions of both the
Federal and State Constitutions and State laws. How would you
compare and contrast your role as a Chief Justice of the State su-
preme court with the role you will assume, if you are confirmed,
on the Eleventh Circuit Court of Appeals?
Justice Barkett. Senator, as a member of the court of last resort
in a State, it is the State supreme court's job to look and act, in
our State, Florida, within the context of Florida's Constitution and
Florida's law and Florida precedent, which in some instances may
be different from that of the Federal precedent or the Federal Con-
stitution. We, of course, must apply the Federal Constitution, but
State Constitutions may have more protections than the Federal
Constitution, and it is in the context of Florida law where a Florida
Supreme Court justice operates.
In the Federal system, of course, you would not be looking at the
case in front of you within the context of the ambit of the Florida
Constitution or the Florida laws. You will, of course, be looking
only to the Federal laws and be guided by the precedent that the
U.S. Supreme Court has established, and I of course will do that.
The Chairman. When your court, the Supreme Court of the State
of Florida, construes State statutory or constitutional provisions,
are you bound by the precedents of the U.S. Supreme Court?
Justice Barkett. We, of course, are, but we may have additional
requirements under Florida's Constitution.
364
The Chairman. I understand what you are saying, but, for the
record, give me an example, if you can think of one, where the Flor-
ida State Constitution has an additional safeguard built in.
Justice Barkett. For example, the voters in my State very re-
cently passed a constitutional express right of privacy which is de-
lineated just exactly that way. The people of the State of Florida
have a right of privacy, the people of the State of Florida have a
right to be let alone and
The Chairman. So you do not have to worry about unenumerated
right of privacy in the State Constitution?
Justice Barkett. The people of the State of Florida enumerated
their right of privacy very explicitly, so there would be no question.
Senator, I believe.
The Chairman. So in that case, you may very well — and I am not
looking for a hypothetical, but it is possible that you could conclude
that, for a particular circumstance, there was not a right of privacy
guaranteed in the Federal Constitution on a particular issue, but
may very well be enumerated in the Florida State Constitution?
You would not be in any way violating the Federal Constitution by
upholding a more stringent or a more clearly articulated right set
out in the Florida Constitution?
Justice Barkett. I would not be interpreting the Florida Con-
stitution or applying Florida law in a Federal context, except in
those cases where I am required
The Chairman. I mean now, as a Florida Supreme Court Justice.
Justice Barkett. That is correct. Senator. For example, in a pri-
vacy case, it would not be necessary to deal with any Federal con-
stitutional issues. We look to them, of course, for persuasiveness
and for guidance, as we do to many other courts.
The Chairman. As the Chief Justice of the Supreme Court of the
State of Florida, in a matter that just deals with Florida statute,
the Florida Constitution is not in any contravention of any Federal
constitutional interpretation. Are you able to, in your view, along
with your associates on the bench of the supreme court, overrule
standing precedent of the Florida Supreme Court?
Justice Barkett. Of course. Senator. It is the function of the
court of last resort to do so. Of course, on the Eleventh Circuit
Court of Appeals, assuming I have the opportunity to serve there,
that would be a job reserved for the U.S. Supreme Court.
The Chairman. Put another way, if you strongly disagree with
a U.S. Supreme Court ruling, as an appellate judge on the eleventh
circuit, and you were convinced, though, that the facts were clear,
the circumstances were clear that it fit clearly on all fours within
the context of a recent or the standing Supreme Court position on
a particular issue, even though you disagreed with the reasoning
of the Supreme Court as to how they reached that conclusion, what
is your requirement under your oath of office to do?
Justice Barkett. To follow the law, Senator. That is what I have
done and that is what I anticipate I will always do as long as I am
a judge.
The Chairman. I am sorry to keep focusing on this, but it is im-
portant. As a supreme court justice in the State of Florida, in the
literal sense, you need not follow the law as interpreted by your
colleagues the day before or 10 days before or 30 years before. You
365
can sit there and say I think the reasoning was faulty in the case
of Smith V. Jones, which is the law of the State of Florida, as inter-
preted by the Florida Supreme Court as it relates to the Constitu-
tion of the State of Florida, and you can say I think that was faulty
reasoning, it stood for 30 years or 30 days, I am going to vote to
overrule that case. So that is, in the literal sense, not upholding
the law. You are rewriting the law. You are redefining the law, not
rewriting, redefining the case law.
As an appellate court judge, is it within your province, under
your oath of office, if you are sworn in, to similarly act with regard
to U.S. Supreme Court ruling with which you believe there is
faulty reasoning and a misapplication of the law?
Justice Barkett. As a member of the court of last resort in the
State, you are permitted within the ambit of your authority and it
is appropriate to on occasion reverse your prior precedent. One
does not do that lightly, Senator, and it is not a regular occurrence,
obviously. On the Eleventh Circuit Court of Appeals, a judge does
not overrule the precedent of the Supreme Court or even of its own
court, barring, of course, those rare instances where there might be
an en banc reconsideration of an issue.
The Chairman. I thank you. My time is up.
Senator Hatch has questions and he is next, and they asked me
to wait while he comes in from the reception room in a moment.
Senator Cohen. I would be happy to proceed in his absence, Mr.
Chairman.
The Chairman. As they say, when I look at my colleagues on the
Republican side and the senior member is waiting to ask questions,
there is an expression a former Republican leader used to have, "I
ain't got no dog in that fight," so I am going to wait and let the
senior member ask his questions.
Senator COHEN. The senior dog has just arrived. [Laughter.]
Senator Hatch. I have been called worse, I want you to know.
We welcome you to the committee, Justice Barkett.
Justice Barkett. Thank you, Senator.
Senator Hatch. We appreciate what a wonderful family you
have. I have met a number of them and I have been called by
them, and I truly believe you have a wonderful family.
What I would like to do is go through some preliminary things
and then start and do as much as I can before I turn to our col-
leagues on the committee.
Is it not the case that there will be many issues which will come
before you, as a circuit court of appeals judge, if confirmed, which
are not directly governed by precedent?
Justice Barkett. I suppose, although candidly. Senator, most is-
sues will have some analogous precedent or some prior expressions.
Senator Hatch. I believe you will have many cases of first im-
pression before you. But you are right, there will be a lot of cases
that involve precedent which you have to consider. For example.
Congress enacts new laws all the time which require initial consid-
eration in the lower courts, starting with the district court in most
cases. Some of them do come directly to the circuit courts, I imag-
ine. But State legislatures enact laws all the time that also are
subject to challenge on constitutional grounds. So you will have
cases that really will be first impression cases.
366
But is it not also true that there will be other cases in which the
scope, the breadth or narrowness of existing precedent will be dis-
puted? You have had that in your experience as a supreme court
justice. As you know, the Supreme Court grants review in only a
tiny fraction of all court of appeals decisions. So it is fair to say,
is it not, that Federal courts of appeals have the final word in al-
most all the cases that really come before them?
Justice Barkett. They have a substantial impact, I am sure,
Senator.
Senator Hatch. They do. In light of all of this, it is also fair to
say that a Federal appellate judge's philosophy or approach to
judging would naturally be important to us on this committee and
to everybody else, for that matter. You would agree with that?
Justice Barkett. I agree that their approach to judging is. I am
not sure I understand what you mean by philosophy.
Senator Hatch. I understand that. It is not just the Supreme
Court justice's judicial philosophy that is significant. Lower court
decisions cover so many issues, from crime to obscenity to privacy
to civil rights and so on, that those particular decisions often be-
come the law of that particular circuit, and it is common to have
split-circuit opinions, where one circuit may differ from another cir-
cuit. So there are differences in philosophy, differences in prece-
dent, differences in cases of first impression, all of which you have
had to deal with to a limited degree as a justice on the Florida Su-
preme Court, but which you will have to deal with to a much larger
degree as a judge on the circuit court of appeals.
Justice Barkett. Yes, sir.
Senator Hatch. Let me just turn briefly to the general subject
of opinion writing. Part of the reason that appellate judges embody
their decisionmaking in written opinions is to provide guidance to
lower courts and parties in future cases. I am sure you would agree
with that.
Justice Barkett. Yes, sir.
Senator Hatch. And part of the reason is to satisfy the parties
and the public that the court is in fact engaged in reasoned deci-
sionmaking, correct?
Justice Barkett. Yes, sir.
Senator Hatch. So you would agree, I trust, that it is important
for judges to explain their thinking, especially appellate judges, as
they decide these cases?
Justice Barkett. Yes.
Senator Hatch. I want to ask you some questions about your
judging under the equal protection clause of the Federal Constitu-
tion. This is extremely important to me and I think to almost any-
body who is concerned about constitutional decisionmaking.
Let me just first ask you whether or not you agree with Justice
Blackmun's formulation of the test for deciding cases under the
equal protection clause or with equal protection clause implica-
tions. Writing for the court in a 1992 case, Nordlinger v. Hahn, he
said, "This Court's cases are clear that, unless a classification war-
rants some form of heightened review because it jeopardizes exist-
ence of a fundamental right or categorizes on the basis of an inher-
ently suspect characteristic, the equal protection clause requires
367
only that the classification rationally fiirther a legitimate State in-
terest." Do you agree with his articulation of that?
Justice Barkett. I agree that Justice Blackmun said that, yes,
Senator.
Senator Hatch. But do you agree with what he said?
Justice Barkett. I agree that the law of equal protection is what
has been said by the U.S. Supreme Court and the Federal courts,
absolutely, and I would follow that precedent without any quarrel.
Senator Hatch. He basically defined the rational basis test in
that statement?
Justice Barkett. Yes, sir.
Senator Hatch. And that law has been settled for at least the
last few decades?
Justice Barkett. I do not have any question about that, Senator,
on the Federal side, understanding that our requirements under
the Florida Constitution and under Florida cases differ slightly.
Senator Hatch. Sure.
Justice Barkett. Or somewhat.
Senator Hatch. Justice Blackmun also explained in the
Nordlinger case how the rational basis standard is to be applied.
As he reiterated, it is a well settled test.
Justice Barkett. Yes.
Senator Hatch. He said, "The Equal Protection Clause is satis-
fied so long as there is a plausible policy reason for the classifica-
tion, the legislative facts on which the classification is apparently
based rationally may have been considered to be true by the gov-
ernment decisionmaker, and the relationship of the classification to
its goal is not so attenuated as to render the distinction arbitrary
or irrational." Do you agree with that statement?
Justice Barkett. Yes, sir.
Senator Hatch. Indeed, in 1980, in USRR Retirement Board v.
Fritz, the Supreme Court noted that so long as there are plausible
reasons for the legislature's action, the court's inquiry "is at an
end." Indeed, citing a 1960 decision, the Court there also made it
clear that it is irrelevant whether these plausible reasons were ar-
ticulated by the legislature or even actually underlie the legisla-
tion. That is how deferential the standard is for elected representa-
tives to make these laws.
And as the Supreme Court has stated, this standard "is a para-
digm of judicial restraint," because it protects against courts using
equal protection as — and it is an interesting quote — "a license to
judge the wisdom, fairness or logic of legislative choices," as dis-
tinct from the constitutionality of those choices. That, of course, is
the FCC V. Beach Communications case.
So I wanted to go through just to establish that we are both talk-
ing on the same wave length, when we discuss these equal protec-
tion cases.
What I would like to do is just go through some of the cases. I
am not going through them from the standpoint that I agree or dis-
agree with the outcome, because that is almost irrelevant.
Justice Barkett. I understand, Senator.
Senator Hatch. I am going through them with regard to judicial
reasoning and philosophy. Let me just turn to your dissenting opin-
ion in University of Miami v. Echarte. This is a 1993 case. In that
368
case, the Florida Supreme Court ruled that a State law placing a
monetary cap on noneconomic damages — that is damages for pain
and suffering — in medical malpractice cases did not violate equal
protection.
The Florida Legislature had found that there was a financial cri-
sis in the medical liability insurance industry, that if the crisis was
not abated, many providers of medical care would "be unable to
purchase liability insurance and many injured persons [would]
therefore be unable to recover damages," that the size and fre-
quency of very large claims was the cause of these problems, and
that damages for noneconomic losses were being awarded arbitrar-
ily and irrationally.
Now, you dissented on a variety of State law grounds, but you
also dissented on the ground that the caps on noneconomic dam-
ages, in your view, violated the equal protection of the U.S. Con-
stitution. Now, I am not concerned here with the merits of caps on
noneconomic damages in medical malpractice cases or medical li-
ability cases, as I prefer to call it.
Justice Barkett. I understand.
Senator Hatch. My concern goes to your use of the Federal equal
protection clause as a basis for a court to strike down such caps,
because it seems to me to be clearly at odds with settled Supreme
Court precedent on the deference to be given legislative bodies
under that clause.
Now, your opinion says, "I fail to see how singling out the most
seriously injured medical malpractice victims for less than full re-
covery bears any rational relationship to the legislature's stated
goal of alleviating the financial crisis in the medical liability insur-
ance industry."
Now, it seems to me that the rational relationship between the
means and the goal is self-evident, namely, limiting the award of
enormous noneconomic damages can be rationally expected both to
reduce malpractice premiums which are passed on to patients by
doctors, and to help alleviate the financial crisis in the medical li-
ability industry.
Now, I can understand someone disagreeing with the legislation
as a matter of policy. I may or may not agree with that myself. But
given the legislature's judgement about the medical malpractice
crisis in the State of Florida, where it is even difficult to get obste-
tricians to deliver babies in certain areas, how can you as a judge
use the Federal Constitution's Equal Protection Clause to strike
down that law as irrational? And how can it fairly be said that the
cap on noneconomic damages, to use your terms, can only be called
arbitrary and bears no rational relationship to alleviating the medi-
cal malpractice industry?
Justice Barkett. I think my answer really has to refer or incor-
porate much of what I said to Senator Biden, Senator Hatch, in the
sense that when you are sitting as a State Supreme Court justice,
you look at these cases totally within the ambit of Florida law and
Florida cases. That particular case was argued primarily under the
auspices of being denied access to courts.
There is a landmark case in Florida called Kluger v. White,
which said that before a right of access to courts can be restricted,
a reasonable alternative must be provided or the legislature must
369
show an over-powering public necessity for abolishing that right,
and that there is no alternative means of meeting that public ne-
cessity. That is a very strong standard, and my court has — this has
antedated my appearance on the court.
The argument in the Echarte case about limiting economic dam-
ages, in essence, really basically was an argument under the access
to courts provision, which is also included in our Constitution ex-
pressly, and it is not in the Federal Constitution.
Senator Hatch. I understand that.
Justice Barrett. If I can just kind of get the whole tenor out,
having said that, we also at the same time have a much different
standard in evaluating equal protection claims under the Florida
Constitution by case law. Our court's analysis of the rational rela-
tionship test is a much more stringent test and permits judges, on
a different standard, to review the relationship between the two.
I grant you that I used the term "Federal Constitution," but if
you look at my dissent in that case and that I think of Justice
Shaw, with whom I concurred, the analysis is totally using Florida
cases under a Florida system, and if the concern is whether I
would apply this analysis under the Federal Constitution, I of
course could not, because the law is very different, as you have laid
it out to be. That was basically viewed as a KLuger v. White access
to courts question, which requires, when a cause of action is taken
away from a plaintiff, that it has to be on the basis of an over-
whelming necessity that the legislature must show, and that there
is no other reasonable alternative.
The Chairman. I would ask unanimous consent, since the Sen-
ator's time is up, to allow him to finish this line of questioning.
There is going to be a vote at 11:25, so I am going to leave and
go vote, so we will not have an interruption. I might suggest that
maybe those
Senator Hatch. It may be important to just finish this line, so
we will get it out of the way.
Justice Barkett. I would appreciate it.
Senator Hatch. When I read the case, you relied on equal protec-
tion language, the Federal equal protection language, and, frankly,
I could not see how anybody — you are saying if you had to rely on
Federal equal protection, the decision might have been totally dif-
ferent?
Justice Barkett. No, I used the term Federal Constitution. I ap-
pended it to the Florida Constitution and the Federal Constitution.
We do use terms of rational relationship, but our test, our ability
to apply the test differs from the Federal court's ability to apply
the test.
Senator Hatch. You see why I was concerned?
Justice Barkett. Absolutely.
Senator Hatch. Virtually every State in Federal law classifies
people in one way or another and draws distinctions between peo-
ple.
Justice Barkett. I understand.
Senator Hatch. For this reason, the Federal equal protection
clause is one of the most powerful tools for a judge to wield in order
to override judgments committed under our system to the people or
their elected legislators.
370
Justice Barrett. I have no problem applying the Federal law on
equal protection or anything else, as a member of the Eleventh Cir-
cuit, should you permit me to serve in that capacity. Senator.
Senator Hatch. That is fine.
Let me just go a little bit further here. You had several State
court grounds in that case. It did not have to reach out to the Fed-
eral equal protection clause, and you are saying here that perhaps
you shouldn't have.
Justice Barkett. The only reaching out was including the phrase
"Federal Constitution," I should not have done that. The analysis,
the cases that I relied on, the cases that the other judges relied on
were exclusively Florida cases. I do not think you will see one Fed-
eral case cited in my dissent, Senator. I do understand the dif-
ference and want to reassure you that there is no problem in apply-
ing the Federal standard.
Senator Hatch. I appreciate that. The reason it juniped out at
me when I read the case, you write "I agree with Justice Shaw that
the statutes in question violate article I, section 21 of the Florida
Constitution. I also believe the statutes violate the right to trial by
jury and the equal protection clauses of the Florida and U.S. Con-
stitutions."
Justice Barrett. I understand.
Senator Hatch. I have concerns about another one of your equal
protection opinions, and that is Shriners Hospital v. Zrillic. I guess
I am pronouncing that right. It is a 1990 case.
Justice Barrett. I have it here, but I did not get a chance to
look it over.
Senator Hatch. You may be the first witness in the history of
this committee who has been given the cases in advance by the
committee. But it came up in one of our prior hearings, and I
thought it was a good idea, so I decided to give you all those cases
and hopefully they will be helpful to you and helpful to us.
Justice Barrett. Thank you. Senator.
Senator Hatch. In that case, the Florida statute permitted a di-
rect heir to cancel a gift to a charity made in a will that was writ-
ten less than 6 months before the author of the will, the so-called
testator, died. In short, the statute operated to guard against
undue influence by charities with people who are making wills.
You wrote the opinion for a divided court striking down the stat-
ute. One of the grounds on which you struck it down was the Fed-
eral equal protection clause. My concern here again is not with the
wisdom or lack of wisdom in this statute. I am not going to judge
Florida law on that basis. Rather, I am concerned with the reason-
ing by which you use the Federal equal protection clause to invali-
date it.
In that case, you stated: "Equal protection analysis requires that
classifications be neither too narrow nor too broad to achieve the
desired end. Such under-inclusive or over-inclusive classifications
fail to meet even the minimal standards of the rational basis test."
Now, your opinion proceeds to hold that the statute is under-in-
clusive, because it protects against only one type of undue infiuence
on a person making a will, that is influence by charitable organiza-
tions. Moreover, you said that the statute is over-inclusive, because
371
it would render voidable many donations not tainted by undue in-
fluence. Are you having any trouble finding that case?
Justice Barkett. No.
Senator Hatch. We will get it for you.
Justice Barkett. I have it.
Senator Hatch. Your opinion further states that the 6-month pe-
riod set forth in the statute is irrational. Now, your words are
"there is no rational distinction to automatically void a devise upon
request when the testator survives the execution of the bill by 5
months and 28 days, but not when the testator survives a few days
longer." Would what I have just said be a fair summary of your
equal protection holding?
Justice Barkett. I do not dispute it. Senator. Again, I frankly
was wondering why you included Shriners Hospital, because I
could not figure out what interest you all would have in it.
Senator Hatch. It's the equal protection clause, because let me
just bring it down to where it is. If your interpretation of the equal
protection clause as written in the prior case we discussed — but
you have explained that — and as written in this case is the law,
that means the judges can do whatever they want to do. They do
not have to abide by any law. They can just use the equal protec-
tion clause to justify any decision that they make, based on their
own personal, political or policy differences with the elected rep-
resentative statutes.
Justice Barkett. I understand the concern. Senator, but I do not
think it is justified in my case. And with reference to Shriners Hos-
pital, the thrust of that opinion again was grounded in the Florida
Constitution, which is very specific about providing the right to ac-
quire, possess and protect property, and it goes on to deal with in-
heritance issues and so forth, and reposit in individuals the right
to dispose of their property however they want to.
Again, when I am thinking equal protection, generally I am
thinking in terms of the prior case law of my own court in my own
State, which differs somewhat, but
Senator Hatch. You can see why I am upset with it, because —
I am not upset with you, I mean you have a right to feel the way
you want to. On the courts, we are really upset, when judges then
start using the equal protection clause to justify any policy change
they want, regardless of what their elected representatives do. Un-
fortunately, that has been happening all over this country, and it
has been happening in a variety of ways.
When you state in the case — and this is on page 69, in the right
column, right under IV— "We also find that section 732-803 vio-
lates the equal protection guarantees of Article I, Section 2 of the
Florida Constitution, and the Fourteenth Amendment of the United
States Constitution."
Justice Barkett. Senator, I understand your concern. As I said,
I do not think it is warranted in my case, and I think if you take
a look at my entire record and my view of the separation of powers,
I think you will find that I have fairly consistently attempted to
recognize that policymaking is not within the purview of the judici-
ary, I do not believe in reading things into statutes.
I, in fact, given the choice of it is something substantive, I vote
to find it unconstitutional and send it back to the legislature.
372
where, in the give and take of legislative debate and consideration
of issues, which judges do not have the opportunity to do, they
would have the opportunity to fix the statute so that it would pass
constitutional muster, not the way judges want to fix it, but the
way legislatures ought to fix that. I have taken that position fairly
consistently in my judicial career.
Senator Hatch. That statement pleases me, and I have to say
that it is consistent with what I think is good judging. But my con-
cern is that your application of the rational basis test in this case
collides head-on with several principles that earlier Supreme Court
cases — let me just mention some of those precedents and ask you
to respond to those concerns.
Senator Simon. I do not mean to cut off Senator Hatch. I would
like to get in a few questions. I will not be able to return after the
vote.
Senator Hatch. I hope it will not take me too long. The vote just
started?
Senator Simon. We have a vote on right now.
Senator Hatch. I have to finish this one point. Let me see if I
can hurry through this and give you the time to answer a few ques-
tions.
The Supreme Court has specifically held that a classification
does not violate the equal protection clause simply because it is "to
some extent under-inclusive and over-inclusive," and that is Vance
V. Bradley.
Justice Barkett. I have no problem following the Federal law,
if and when I am in the Federal system, and will certainly not
apply any Florida precedent to situations in which there already is
Federal precedent. Senator. I can assure you and the American
people of that.
Senator Hatch. Well, I appreciate that comment, but I am trou-
bled by your ruling that the 6-month period is irrational, simply
because it produces different results, even under Florida law, when
the testator survives 5 months and 28 days or maybe a few days
longer, or 6 months and 1 day. Virtually the same objection could
be voiced against every time limit in the law, including, for exam-
ple, a 1-year statute of limitations period or limiting protection
against age discrimination to those who are 40 years of age or
older. Such time limits are, by necessity, inherently and inevitably
arbitrary.
Justice Barkett. The only thing I can suggest. Senator, is that
you read the entire case in its context and the history of both of
the equal protection cases in Florida, as well as the Constitution
upon which frankly I was focused in that case more than anything
else, and that is the right of ownership over property and the abil-
ity to dispose of it as one wishes, that is the testate.
Senator Hatch. I understand. But can you show me any place
in Federal authority that would justify that decisionmaking?
Justice Barkett. All I can tell you there is, whatever the Federal
authority is, that is what I will be guided by in the eleventh circuit
court of appeals, assuming I have the opportunity to serve there.
I do not think there is any question of that, and I do not think
there is any question really, either, of my applying legislative man-
dates wherein I have questioned the wisdom of them.
373
There have been many opportunities to have expressed a view
that the law was unwise and, therefore, we were going to overrule
it. But I do not think it is in the prerogative of judges to do so.
I have not done so, in my judgment, in the face of unwise laws, and
I do not intend to do that in the future.
Senator HATCH. I am not trying to give you a rough time, but
these are really important positions. The circuit court of appeals is
very, very important. We have established that they decide finally
most cases in our society. It is not your position, is it, that your
obligation to follow the Federal Constitution and Federal laws and
U.S. Supreme Court precedent is different as a U.S. court of ap-
peals judge than it would be as a justice on the Florida Supreme
Court?
Justice Barrett. I am suggesting that the ambit is different.
When I am looking at a Florida case, I am looking at the Florida
law and interpreting and talking about equal protection. I am look-
ing at the Florida constitutional requirements, and I am looking at
the totality of the way the arguments are presented and framed.
In the Federal system, they would not be presented and framed
or involved with a Florida constitutional provision that is going to
let you look at things focused mostly on the Florida constitutional
provision, as opposed to some of the ancillary issues that are
raised.
Senator Hatch. Can you cite any precedents under Florida law
that would allow you to use the equal protection under that Con-
stitution in this broad a fashion, so you strike down basically the
classifications by the State legislature?
Justice Barrett. I can read to you the language in a case, it is
in the 1970's: "In order to comply with the requirements of the
Equal Protection Clause, statutory classifications must be reason-
able and nonarbitrary, and all persons in the same class must be
treated alike. When the difference between those included in a
class and those excluded from it bears a substantial relationship to
the legislative purpose, the classification does not deny equal pro-
tection." When it does, then it does. There are other lines of cases
where the analysis is very different from the Federal analysis, as
it were.
Senator Hatch. I want to finish this line of questions, because
it is important.
Senator SiMON. I do not m.ean to cut you off, but I am going to
have to get a few things in here.
Senator Hatch. I think I can do it in a couple of minutes, if we
do not get into an argument.
Senator SiMON. Two minutes and then I am going to take over.
Justice Barrett. What do I do?
Senator Hatch. You just be yourself. We will handle this one
way or the other. [Laughter.]
My concern naturally about your rationale in those two cases —
and there are only two, and I have a number of others, but you are
answering these matters — my concern about your rationale in this
case is it goes far towards transforming rational basis scrutiny into
strict scrutiny, which is very, very important.
Indeed, if applied consistently, it seems to me that there are few
laws that could survive the test that you set forth in that particu-
374
lar case. Of equal concern is the prospect that the test would not
be applied consistently, but would be used arbitrarily and selec-
tively to strike down particular laws that any judge can say is over-
broad or unsound.
If I was to illustrate it, I would compare your opinion in this case
to your opinion in LeCroy v. State. In that case, the six other Flor-
ida Supreme Court justices voted to affirm the death sentence for
a murderer who was 17 years and 10 months old at the time he
committed two brutal first-degree murders. In your lone dissent,
you took the position that the eighth amendment ban against cruel
and unusual punishment prohibits the execution of a person who
was under 18 at the time of his offense. In short, you took the view
that the Constitution imposed a bright-line age minimum of 18 for
offenses that can result in the death penalty.
Now, let me note incidentally that the U.S. Supreme Court sub-
sequently rejected the position that you took. For present purposes,
however, I would like to simply apply the methodology of your
Zrillic opinion to the position that you took in LeCroy. If you apply
the Zrillic methodology, one would say that the bright-line age min-
imum of 18 is both under-inclusive and over-inclusive. It is under-
inclusive, because it fails to protect from capital punishment those
persons over 18 who, in the language of your LeCroy dissent, "have
not fully developed the ability to judge or consider the con-
sequences of their behavior."
Senator SiMON. I hate to cut off my colleague from Utah. I have
great respect for him, but he has used his 2 minutes and I have
to get a few minutes in here before I vote, and I am not going to
be able to come back.
Senator Hatch. All right.
OPENING STATEMENT OF SENATOR SIMON
Senator Simon. Let me just comment briefly: You have your crit-
ics, as you know, Madam Justice. I read, for example, the Washing-
ton Times that says, "The Clinton administration would be wise to
withdraw her name before her radical views become an embarrass-
ment."
Then I read the newspapers in Florida, where they know you,
and I get a totally different message. Here is the Orlando Sentinel:
"Florida Chief Justice Rosemary Barkett, tapped to be a Federal
appeals judge, is hardly soft on crime, as her opponents say," and
these articles they keep coming in.
In regard to the case of someone under the age of 18, I think it
is important to emphasize what my colleague Senator Hatch said.
The Supreme Court ruled subsequent to, not prior to, your ruling.
And let me just add, as one who opposes the death penalty because
it is a penalty reserved for people of limited means, I also oppose
the death penalty for people under the age of 18. There are only
five nations on the face of the earth that in recent years have le-
gally executed people under the age of 18. Three of them are Iraq,
Iran, and the United States. We are not keeping the best of com-
pany in some of these things.
But the question before us is not the death penalty. You have in
over 200 cases upheld the death penalty. The question is whether
you are going to uphold the law.
375
I remember when Bill Barr sat in that seat, as a nominee for At-
torney General and one of my colleagues, I believe it was Senator
Metzenbaum, asked him what he thought of the Roe v. Wade deci-
sion, and he said very candidly, "I think it was a bad decision, but
my job is to uphold the law." And I gather that that is precisely
the position that you take. I might add that I think this committee
unanimously approved Bill Barr, no matter which side of the Roe
V. Wade decision we were on and I think we ought to do the same
for Justice Barkett, no matter which side of the death penalty we
are on.
Am I misconstruing your position?
Justice Barkett. No, Senator, I think you are construing it cor-
rectly. When I decided LeCroy, the U.S. Supreme Court in Thomp-
son had itself put on a bright-line rule saying that you could not
execute anyone under 16 years old. They left open the question of
whether or not it would be cruel and unusual punishment to exe-
cute someone between the ages of 16 and 18, and I took the posi-
tion that, for the reasons that you can read in my dissent, which
I think are legally supportable, that the open question of the 18-
year-old should be decided on the basis of finding it cruel and un-
usual punishment.
Subsequent to that time, the U.S. Supreme Court spoke in San-
ford, and all I can tell you is that I obviously will apply the prece-
dent of the Supreme Court on the Eleventh Circuit, should I serve,
and as I have done on the Florida Supreme Court.
I also have to take pains to add that the selective use of cases
is, in my judgment, unfair, when one recognizes that I am — I think
my critics sometimes are using selective cases to suggest that I am
not in the main stream, but my record reflects otherwise, when you
recognize that my court is unanimous approximately 70 percent of
the time, that I have been in the majority in about 91 percent of
the time on my court, and approximately 85 or so percent on crimi-
nal cases. So I am hardly out of the main stream.
Senator Simon. I do not mean to interrupt you, but my staff tells
me I have 4 minutes left to get over and vote.
I would simply like to insert in the record at this point the state-
ment of the National Association of Police Organizations, in which
using their words, they "wholeheartedly support" your nomination.
[The letter referred to follows:]
National Association of Police Organizations, Inc.,
Washington, DC, October 22, 1993.
Hon. Joseph R. Biden, Jr.,
Chairman, Committee on the Judiciary,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Biden: The National Association of Police Organizations ("NAPO")
which represents over 143,000 sworn law enforcement officers in more than 2000
associations throughout the United States wholeheartedly supports the nomination
of Florida Chief Justice Rosemary Barkett to the Federal Judiciary. The 26 000
NAPO members in Florida are represented by Area Vice Presidents who have
unanimously voted for this endorsement.
During the recent retention election in Florida there was much debate and rhet-
oric. Representatives of the Florida PBA reviewed Justice Barkett's record and the
Florida PBA Board of Directors, as well as most mainstream law enforcement asso-
ciations, voted unanimously to endorse Justice Barkett's retention. She subse-
quently won a resounding victory indicating the electorate's support for her efforts
on behalf of the citizens of Florida.
376
It is our hope that after careful consideration of her record you will agree that
Justice Barkett has the professional experience, personal integrity and judicial tem-
perament to serve as a Federal Judge. We respectfully request that you support and
vote for this nomination.
Sincerely,
Robert T. Scully,
Executive Director.
Senator Simon. There are other things here that I could enter in
the record, but I am pleased to support you. I think your response
and your attitude is the right one. I think you will make an excel-
lent appellate court judge, and I hope we have the wisdom to ap-
prove your nomination.
Justice Barkett. Thank you very much. Senator.
Senator SiMON. We will stand in recess for a few minutes.
[Recess.]
The Chairman. The hearing will come to order.
A minor departure from the ordinary way of proceeding, we have
the honor and the privilege of having a former colleague and a very
good personal friend, now the CJovernor of the State of Florida here
and he was testifying in another committee down the road, and we
invited him to come by.
Welcome, Governor. It is good to see you.
STATEMENT OF HON. LAWTON CHILES, GOVERNOR OF THE
STATE OF FLORroA
Governor Chiles. Thank you, Mr. Chairman.
I am delighted to be here and say that you are looking well. Of
course, I remember when you were a boy on the block. [Laughter.]
The Chairman. I am going to tell a story on you, Lawton. The
first day I sat on the Senate floor with you, when I got here, I
turned to you — and you may remember — I turned to you and I said,
"You know, how long did you spend learning the Senate rules?" I
had the book in my drawer there of the Senate rules. You looked
at me and said, "Don't worry about that book." I said, "Why not?"
I said, you know, you have Jim Allen, who was as master par-
liamentarian, and Robert Byrd. He said, "Look, there is only one
rule you have to understand here to do business in the Senate, and
it is, "I ask unanimous consent." If you get it, it's fine, if you don't,
don't try." [Laughter.]
Governor Chiles. Mr. Chairman, I thank you and am delighted
to have a chance to be here and to speak a word on the part of
Chief Justice Barkett. She is Chief Justice now of our State su-
preme court system, and I know she will make a wonderful circuit
court of appeals judge. She has had good experience in Florida, had
lawyers like Chesterfield Smith and some others that she has had
to listen to in arguments.
The Chairman. Does that speak to her tolerance level?
Governor Chiles. It speaks to many things. But I think she has
had an outstanding judicial career in Florida, and we consider her
one of our brightest, and I certainly hope this committee and the
Senate will confirm her.
The Chairman. Thank you, Governor.
The truth of the matter is the thing that you and I spent most
of our time working on, even though we sat next to each other on
the Budget Committee for years, was criminal justice matters, and
377
you were one of the people in our party who was always pushing
for us to have more rational approach to dealing with violence in
society, and you have a hell of a record in terms of being tough on
crime issues, and your endorsement here today is taken note of,
and, at least for my part, I very much appreciate it.
I welcome you and thank you and hope you stick around, if you
are able to. I know you have got a thousand things to do.
Governor Chiles. Thank you. Senator.
The Chairman. I am now going to yield to our colleague from
Maine for his opportunity to question the nominee.
Senator Cohen. Thank you very much, Mr. Chairman.
Governor Chiles, it is good to see you again. In fact, I took one
page out of the Governor's book. When he first ran for the Senate,
he walked across the State of Florida. He was good enough to meet
with me and tell me how he did it, and I did the same thing in
Maine. We triumphed by going out and meeting the people.
It is good to see you again. Governor.
Justice Barkett. Is that to say I should have walked to Wash-
ington, Senator? [Laughter.]
Senator Cohen. Not at this time of the year.
I was interested in your opening remarks. You said that for all
the things you have done right in your life, you owe it to the advice
of your family, and that for all the mistakes you have made, you
assume personal responsibility. As you said that, I could not help
but remember the lines that go something like, "In my life's dying
embers, these are my regrets, when I was right, no one will re-
member, and when I was wrong, no one will forget." You will find
that during the course of this confirmation hearing, we will look at
when we think you were wrong and omit the hundreds, if not thou-
sands, of times when you were right.
I also would note that many people are under some delusion
about the court system. When they look at judges and justices they
see black robed oracles who sit in quiet chambers alone dispensing
judicial wisdom, unencumbered by personal views, biases, or predi-
lections.
Of course, you know and we all know that is a fiction. Judges are
real people, and they are brushed by the wing of experience, as all
of us are. They look out at the world through lenses that are
clouded, or that are at least covered by a thin film of passion, of
preference. It is a measure of judicial temperament to restrain
those emotional components that make us human beings.
That rigorous discipline, both in personal behavior and profes-
sional thinking, distinguishes those who wish to serve on the
bench. There is no way to adhere to this fiction that you and all
the others who come before us are looking through an absolutely
clear lens which is unencumbered by any past experiences. In Jus-
tice Cardozo's little book, "The Nature of the Judicial Process"
there is a footnote in which he quotes a French author as saying
"In the final analysis, there is no guarantee except the personality
of the judge."
So we are looking at the personality of the judge, and I suspect
that the people of Florida have already done that. They have
looked at your personality very closely and at your philosophy and
have not found it particularly wanting. I would like, nonetheless.
378
to at least explore a couple of issues in the remaining time that I
have. I have used up a lot of it just making an observation. But
there has been some concern about the death penalty. I am one of
the few members of this committee who does not support the death
penalty, and yet I found some of the reasoning in your opinion to
be curious. I would like to look at the case of Dougan v. State.
As I understand it, you joined a two-judge dissent to the court's
affirmance of the death penalty in that case. Dougan stabbed and
shot a random 17-year-old victim and then sent the victim's mother
a tape recording describing the crime. The dissent argued that it
was a "social awareness" case because Dougan's fixation on racial
injustice, while misguided, served to extenuate the murder. That
was one aspect I want to go back to and examine in a moment.
The dissent said — and I am quoting — "the victim was a symbolic
representation of the class causing the perceived injustices." The
dissent also noted that Dougan, an intelligent, respected Well-edu-
cated leader in the black community, had redeeming social values.
Finally, the dissent concluded, that the death penalty was not mer-
ited. I would like to examine the components of the dissent.
There is currently a case, I believe in New York, where we have
an individual who stepped aboard, a subway and proceeded to
shoot randomly, killing about seven people and wounding more.
This apparently, according to reports I have read, was an act of
outrage against a society that has discriminated against him be-
cause of his color or background. There seems to be a parallel be-
tween this case and Dougan v. State. I want you to talk about the
language used in the dissent where the individual was described as
being respected, intelligent, well-educated, and a leader in the
black community.
Putting aside Dougan's color for a moment, although that is hard
to do in any of these cases, let us turn it around and say that the
Defendant was someone like Ted Bundy, who could be described as
an intelligent, well-educated, leader in the white community. As I
recall, he was planning to run for Congress on the Republican tick-
et. Fortunately, we were spared that particular congressional race.
I suppose you could say that he was an intelligent, well-educated,
respected leader in the white community and political circles.
What was the rationale in Dougan v. State as to whether there
will be similar cases in which the social awareness factor would be
a determinant in your mind.
Justice Barkett. If you will indulge me for just about 2 minutes,
I need to explain. The problem in dealing with individual cases is
that you are looking at them from the perspective of that one case,
instead of from the perspective of what the law requires. And I
need to make a couple of observations, if I may, about that.
The death penalty jurisprudence is very difficult. The facts of
cases — and, frankly, it is one of the most difficult parts of my job,
reading the records of all of these death penalty cases which have
in them the descriptions of acts of depravity in many instances
which are overwhelming. And the natural response to this in many
people's minds is that the death penalty should be applied every
time a murder occurs, and certainly in some in which the way the
murder is perpetrated is perhaps more heinous than in other ways.
379
But you are not permitted as a judge to respond emotionally ei-
ther to hatred for the defendant when he, in fact, has been con-
victed of their heinous crimes or in sympathy for the defendant be-
cause of what he went through. What you are required to do,
though, is look beyond the aggravating factors of the crime and not
stop there, as many people are wont to do.
The U.S. Supreme Court has required us, in its regulations and
rules as it has been reflected in the cases, to look not only at the
aggravating factors, but then we must look to the mitigating fac-
tors that may make this case not eligible for the death penalty. It
has nothing to do with the culpability of the defendant in a moral
sense. It has nothing to do with his conviction or the fact that he
should be punished and spend his entire life in prison— which is
what I voted for in Dougan, incidentally. But it has to do with the
fact that you must consider both things and weigh them to deter-
mine if someone is legally culpable sufficient for the death penalty,
not culpable for any other reason.
So that when you look at what we are looking at in mitigating
factors, you are looking at things which the Supreme Court has re-
quired us to look at, things like the background of the individual
and the circumstances of the crime and the motivation of the
crime. In looking at that, the dissent, written by Justice McDon-
ald— and I also as an aside have to point out that I have written
hundreds and hundreds of cases on the death penalty. Senator, and
I have no problem in agreeing with Justice McDonald's dissent. But
the words that he used were not mine. They were Justice McDon-
ald's.
But when we are talking about things like the intelligence, some-
one who is well educated, someone who is a leader in the commu-
nity, and then the motivation which led him to commit the act —
and in the case of Dougan, it was a motivation which arose out of
an oppression and a racial injustice — ^you have to weigh it. In and
of itself, clearly, feeling racially oppressed is not going to be suffi-
cient as a mitigating factor. I think you have to look at the whole
picture and then ultimately decide whether or not it is appropriate.
Senator Cohen. My time has just about expired. Even though
the red light is on, I will sneak in one more question.
Here the dissent in Dougan v. Slate describes the defendant as
"intelligent," "well educated," "a leader," and "respected." If I were
to turn that around and say unintelligent, not well educated, not
a leader, and not respected, would that have an influence as to
whether a person would be subject to the death penalty? In other
words, if you are higher up on the scale of intelligence, education,
respect, is that a mitigating factor as opposed to someone who is
just the opposite? „ , r>
Justice Barrett. No. In fact, I have written a case called Rogers
which delineates how you look at mitigating factors. First of all,
you have to decide if the evidence supports whatever mitigating
factor is asserted. Second, you have to look at whether a mitigating
factor is, indeed, a mitigating factor. An average intelligence is not
a mitigating factor. One assumes — and I think I said that in that
case. One assumes that that is a given. Everybody has it and,
therefore, it cannot be used as a mitigating factor.
380
The sense that it was used in this opinion by Justice McDonald
was in taking a look at his entire record. He was not a habitual
offender. He had not a long criminal record. There had been no acts
of violence prior to this heinous, horrible act that he committed.
And you take a look at all of that in trying to understand the na-
ture of why he committed this act and whether or not his motiva-
tion, in conjunction with everything else, mitigated it.
I also have to tell you that the racial climate in which this oc-
curred— it occurred a long time ago. This murder occurred in the
late 1960's, early 1970's, in Jacksonville, FL. And you have to take
a look at that. This is 20 years later. I am not sure of how that
would play out under a given set of circumstances today. And I also
have to tell you that this was a very close case. It was discussed
very extensively in several conferences. There were times when the
position which I took — when I took a position different from the
one I took ultimately in the dissent. It is a very close case. I cannot
quarrel with a conclusion which would have found it the other way.
I cannot quarrel with the majority in that case. I can understand
it.
Senator COHEN. Did you file a separate dissent?
Justice Barkett. No. I joined Justice McDonald's dissent.
Senator COHEN. I am way over my time, and I will have to wait
for another time to come back.
Justice Barkett. Sorry. Thank you.
OPENING STATEMENT OF SENATOR THURMOND
Senator Thurmond. Good morning.
Justice Barkett. Grood morning, sir.
Senator THURMOND. How are you?
Justice Barkett. Just fine. Thank you.
Senator THURMOND. Chief Justice Barkett, I would like to dis-
cuss the case of Cruse v. State.
Justice Barkett. Yes, sir.
Senator Thurmond. As I understand from the trial record. Cruse
loaded an assault rifle, a shotgun, a pistol, and 180 rounds of am-
munition into his car, and began driving to a shopping center. On
the way, he fired the shotgun at a 14-year-old boy who was playing
basketball and then at the boy's parents and brother.
At the shopping center, he shot and killed two shoppers who
were leaving a grocery store and wounded a third. He then shot at
various other customers, killing one and wounding another.
When Cruse heard sirens approaching, he got back in his car and
drove across the street to another shopping center. When Officer
Ronald Grogan approached in police car. Cruse turned, inserted a
new clip into his rifle, and fired eight times into the car, killing Of-
ficer Grogan.
Officer Johnson then entered the parking lot and exited his car.
Cruse shot at Officer Johnson and wounded him in the leg. Cruse
then headed into the parking lot searching for the wounded officer.
When he found him, he shot Officer Johnson several more times,
killing him.
As a rescue team attempted to move Officer Grogan's car out of
Cruse's line of fire, Cruse fired several shots at them and told them
to, "Get away from the cop. I want the cop to die."
381
Cruse then entered a store and began firing at people trying to
escape. He killed one more and wounded many others. He then
found two women hiding in the women's dressing room and held
one of them as a hostage for several hours. In all, Cruse killed 6
people and wounded 10 others.
Cruse was found guilty of, among other things, six counts of first-
degree murder. The jury recommended death on all six counts. The
trial court imposed the death sentence for the murders of Officers
Grogan and Johnson. By a vote of 6 to 1, the Florida Supreme
Court affirmed the convictions and the death sentences.
Chief Justice Barkett, in your lone dissent, you voted to reverse
the convictions. In addition, you stated that the death sentence
was, in any event, inappropriate for Cruse.
Let me begin with the second part of your opinion where you con-
clude that even if the convictions were to be upheld, the death sen-
tence was in any event not warranted and should be reduced to
life. You conclude that the cold, calculated, and premeditated ag-
gravator was not met. In particular, you concluded that Cruse had
the pretense of moral or legal justification for killings because the
evidence showed that Cruse was acting in response to his delusions
that people were trying to harm him. But as the majority pointed
out, the consensus of the experts who testified was that Cruse's de-
lusions related to a fear that others were trying to turn him into
a homosexual, not a fear of any physical harm.
Chief Justice Barkett, how do you respond to this suggestion that
your argument against the death sentence for Cruse, therefore,
rests on a serious mischaracterization of the evidence? Do you also
take the position that even apart from what you see as a pretense
of moral or legal justification there was insufficient evidence of
heightened premeditation in the murders of two police officers?
Chief Justice Barkett, with respect to the murder of Officer
Grogan, the evidence shows that when Officer Grogan approached
in his police car, Cruse turned and inserted a new clip into his rifle
and fired eight times into the car, killing Officer Grogan. In addi-
tion, as the rescue team attempted to move Officer Grogan's car out
of Cruse's line of fire. Cruse fired several shots at them and told
them to "get away from the car. I want to kill the cop."
Chief Justice Barkett, with respect to the murder of Officer John-
son, the evidence shows that when Officer Johnson entered the
parking lot and exited his car. Cruse shot him and wounded him
in the leg. Cruse then headed into the parking lot, searching for
the wounded officer. When he found him, he shot Officer Johnson
several more times, killing him. Again, what additional facts would
be needed to convince you that Cruse had heightened
premeditation?
Now, let me ask you a question about your vote to reverse
Cruse's convictions. The basis upon which you would have reversed
the conviction was the prosecutor's alleged failure to make avail-
able to Cruse so-called Brady evidence. Under the U.S. Supreme
Court's ruling in Brady v. Maryland, the prosecution must provide
the accused, upon the accused's request, material evidence in its
possession that is favorable to the accused.
As you stated in your opinion, evidence is material when there
is a reasonable probability that had the evidence been disclosed to
382
the defense, the results of the proceeding would have been dif-
ferent. You would have ruled that evidence of the names of two
mental health experts the prosecution had contacted should have
been turned over to Cruse and that the failure to turn over this
evidence required reversal of the convictions and remand for a new
trial.
In your opinion, you reject the majority's opinion that this evi-
dence was merely cumulative. In addition, you state, "I do not be-
lieve the fact that other experts at the trial expressed the same
opinion regarding Cruse's mental state is a pertinent part of the
inquiry of whether or not a Brady violation occurred."
Chief Justice Barkett, how do you reconcile your position that it
is not pertinent under Brady for evidence that is merely cumu-
lative with your position that evidence is material for purposes of
Brady only if there is a reasonable probability that disclosure of
the evidence would have led to a different result at trial?
Now, let me now turn to Hodges v. — would you care to respond
on that before I go to another case?
Justice Barkett. OK, sir. Senator, first of all, I am trying to do
this in the order in which you asked. I certainly can agree with you
that there is no moral justification for the actions that Cruse took
here, as there is no justification when anybody takes a human life
in a criminal way, however it is done.
What I tried to do. Senator — and I want to again reiterate, I do
not look for ways to avoid the law. I only look for ways to apply
the law, that it has been applied prior to my tenure or prior to the
case in which we are dealing.
In this case, the concept of heightened premeditation and the
concept of no moral justification felt by the defendant were prin-
ciples that have been decided by other cases in my court, and what
I am trying to do is apply it in a consistent fashion. There was, for
example, a case called Banda — I do not have the cite, but I will be
glad to give it to you — where the unanimous court — I think it was
unanimous — said that even in a case where there was
premeditation of the kind where someone dug a grave prior to the
execution, something of that nature, that because in the mind-set
of the person he felt that he was being threatened and that some-
one was going to come after him, that is something that must be
taken into account.
With reference to the heightened premeditation, we struggled —
it is interesting when you are trying to make these distinctions be-
tween aggravating factors and how to deal with them. Our court
struggled very mightily in many, many conferences about how to
differentiate between a premeditated murder and the heightened
premeditation which the statute requires us to apply in aggravat-
ing circumstances. And it is very hard to draw that line.
We knew that the U.S. Supreme Court would not have permitted
us to apply the death penalty uniformly for premeditated murder.
The U.S. Supreme Court had said that was unconstitutional. We
then had to decide, well, then, if we cannot apply it across the
board for premeditation per se and we must apply the aggravating
factor of heightened premeditation, we had to develop a way of de-
fining this heightened premeditation that has to be taken into ac-
count.
383
There are many cases on this point, and what I was trying to do
in Cruse is show that in other cases in which the same kind of
thing occurred, the result had been different.
With reference to the question of the Brady violation, I did not
view it, as the majority did, as a cumulative thing but as a very
significant matter that all of the State doctors also agreed, along
with the defense doctors, or in essence agreed with the significant
mental disturbance that this defendant had. And ultimately, as to
your last point in reference to a dissent, dissents happen very, very
seldom. I think I have dissented approximately 300 times out of
3,500 times. There are times, however, when judges differ, but we
have a court that is unanimous, as I have said, approximately 70
percent of the time, and I have been in the majority approximately
90 percent of the time. Therefore, I want to make clear that a se-
lect— one case, whether you agree with it or not, cannot be used to
fairly examine my record. And I have no hesitancy in applying the
law which has been established before I — applying the law of the
death penalty both federally and in Florida, Senator.
Senator Thurmond. The 6-to-l decision, you are the only one
that dissented, aren't you?
Justice Barrett. You sound like my brother. Senator, who is
here. And every time that happens, he says, "How come you didn't
agree with the other six?"
Yes, sir, I did, but I am pointing out that my dissents are very —
are rare in the totality of the case law.
Senator Thurmond. Now let me turn to Hodges v. State. As you
may recall, Billie Ricks was a 20-year-old woman who worked as
a convenience store clerk. She complained to the police that Hodges
had indecently exposed himself to her. The same day that Hodges
was to appear at a hearing on the indecent exposure charge, he
shot Billie Ricks to death with a rifle in her store's parking lot.
The jury found Hodges guilty of first-degree murder and rec-
ommended that he be sentenced to death. The trial judge found two
aggravating circumstances. First, the murder was committed to
disrupt or hinder the lawful exercise of a government function by
eliminating a witness to a pending criminal charge; and, second, it
was committed in a cold, calculated, and premeditated manner.
The trial judge further found that the aggravating circumstances
far outweighed any mitigating circumstances. The Florida Supreme
Court by a vote of 6 to 1 affirmed Hodges' death sentence.
In a one-paragraph dissent, you first stated that the aggravating
factors of witness elimination and cold, calculated, and premedi-
tated are so intertwined here that they should be considered as
one. You then found that Hodges' mitigating evidence — that he had
no significant criminal history and that he was a good employee
and a good and caring husband and father — outweighed the aggra-
vating evidence and made the death penalty inappropriate.
Chief Justice Barkett, I do not understand the significance of
your observation that the two aggravators were intertwined.
Aggravators arising out of the same murderous episodes are often,
if not inevitably, intertwined. That does not at all mean they are
redundant. Since witness elimination and the cold, calculated, and
premeditated aggravator involved different evils, why shouldn't the
384
statutory scheme which calls for them to be counted separately be
respected?
Justice Barkett. Senator, I was trying to apply the precedent of
my court which prohibits doubling of aggravating factors when they
refer to the same aspect of the crime. In a case called Cherry v.
State, the court specifically said that if two aggravating factors are
based on the same aspect of the criminal episode, they have to be
considered as a single aggravating circumstanc. There is significant
jurisprudence in my State that differentiates between aggravating
factors.
There are some circumstances where you can have two aggravat-
ing factors if they are derived from differing aspects of the crime,
but if they — and that has happened. And in many instances, our
trial judges will write in their death penalty orders that although
it may be this, it may be also this, I considered it as one. So that
is a fairly settled aspect of Florida jurisprudence.
Senator Thurmond. Chief Justice Barkett, I would like to dis-
cuss the case of McKinney v. State. Franz Patella, a resident of the
Bahamas, was driving a rental car in Miami when he stopped to
ask McKinney for directions. McKinney kidnapped Patella, stole
his car, shot him multiple times with a shotgun, robbed him, and
dumped him, semiconscious, in an alley. Patella had seven gunshot
wounds on the right side of his body and two wounds on his head.
He died shortly after being taken to a hospital.
McKinney was convicted of first-degree murder as well as armed
robbery, armed kidnapping, grand theft auto, and other offenses,
and was sentenced to death. The trial court found three
aggravators: the murder was unnecessarily heinous, atrocious, or
cruel; it was cold, calculated, and premeditated; and it was commit-
ted in the course of a robbery or kidnapping.
In your opinion for the court, you reversed the death sentence on
the ground that two of the aggravators had not been sufficiently
proven. In your words, "While it is true that the victim was shot
multiple times, a murder is not heinous, atrocious, or cruel without
additional facts to raise a shooting to the shocking level required
by this factor."
Chief Justice Barkett, it seems to me that there clearly were ad-
ditional facts. Besides the number of shots that made this shooting
shocking, it is worth noting that the whole nation has, in fact, been
shocked by similar recent incidents occurring in the Miami area. In
this case, among other things, the victim was especially vulnerable.
He was lost and was seeking help. In addition, he was dumped,
semiconscious, in an alley. Why did your opinion ignore these facts
in determining that the killing was not shocking?
Justice Barkett. Senator, first of all, I must note that this is a
majority opinion, and the majority of the court concurred in analyz-
ing the case as we did. I also have to note that since this case, we
have had reversed on the issue of heinous, atrocious, and cruel,
many, many Florida cases which have been reversed by the U.S.
Supreme Court.
I have been in the majority several times on this question of
whether or not the facts of a case support the heinous, atrocious,
and cruel factor. The U.S. Supreme Court told us to take a better
look at it, reversed a lot of cases which we have subsequently taken
385
a look at under Espinosa. The only thing I can suggest to you is
that we attempt to be as careful as we can in applying Supreme
Court precedent to the cases before us, and I believe I have done
so.
Senator Thurmond. Chief Justice Barkett, in White v. State,
White was convicted of robbing a small grocery store and shooting
to death a customer. His conviction and death sentence were af-
firmed on appeal. In a petition for post-conviction relief, White
claimed, among other things, that his counsel had been ineffective.
The Florida Supreme Court, by a vote of 5 to 2, affirmed the de-
nial of his petition. In particular, the court addressed in detail and
found meritless White's claim of ineffective assistance of counsel.
Your entire dissent, joined by Justice Cogan, reads as follows: "I
cannot concur in the majority's conclusion that appellant received
a fair trial with effective assistance of counsel."
Chief Justice Barkett, did you not feel an obligation to offer any
further explanation why you were overturning a death sentence
that had been recommended by the jury, that had been imposed by
the trial, that had been affirmed on direct appeal, that had been
upheld again by the judge considering the post-conviction petition,
and by your supreme court colleagues on appeal?
Justice Barkett. Senator, one of the most important constitu-
tional duties that I have is to follow the Supreme Court dictates
that process be fair, especially, as they have said, when the death
penalty is being imposed, the ultimate penalty and a penalty that
cannot be corrected at a time after it has been applied.
When counsel is deficient in providing the assistance of counsel
that is constitutionally required at a trial to make that determina-
tion, I felt it inappropriate then to apply the death penalty if one
felt that the counsel had not been adequate and had not been com-
petent in providing counsel to this defendant.
I again have to suggest to you that we write — our court is an ex-
tremely busy court. We write approximately 50 cases, opinions, per
judge per year, which is a significant number, and I think probably
would be among the highest outputs of State supreme courts in the
United States. I would very much like to have had the opportunity
to write much more clearly or much more expansively in many,
many cases, and I would have liked to have had, I am sure, the
opportunity to have expanded here. But time constraints some-
times preclude you from amplifying any further than that.
Senator Thurmond. Chief Justice Barkett, in Engle v. Florida,
Engle and another man
The Chairman. Senator, excuse me. Before you go on that case,
which is fine and you can have as much time as you want. Senator,
can you give me an idea how much longer this line will go? Because
we have been going 15 minutes a round, and you are over. It is
fine, though. I just want to get a sense.
Senator Thurmond. I have about 10 minutes, 10 or 12 minutes.
The Chairman. Well, I would ask Senator Grassley, since he is
next in order to question, whether he minds if the Senator com-
pletes his line of questioning. That is a tough spot to put you in.
Senator GRASSLEY. I would rather have the chairman rule.
[Laughter.]
386
The Chairman. Mr. Chairman, before you start the next case,
why don't we — why don't we give you 10 more minutes?
Senator Thurmond. Chief Justice Barkett, in Engle v. Florida,
Engle and another man robbed $67 from a convenience store, took
the female cashier, Eleanor Cathy Tolan, from the store, and stran-
gled and stabbed her to death. A four-inch laceration, likely caused
by a fist, was found in the interior of the victim's vagina.
The jury recommended life, but the trial judge, finding four
aggravators and not mitigators, sentenced Engle to death. By a
vote of 6 to 1, the Florida Supreme Court ruled that there was not
a reasonable basis for the jury's life recommendation and affirmed
the death sentence.
You, in a two-sentence dissent, stated without any further expla-
nation your belief that the record adequately supports the jury's
recommendation of life imprisonment.
Again, Chief Justice Barkett, I ask you, do you believe that this
conclusory statement satisfies your obligation to provide reasoned
decision making? Another 6-to-l decision.
Justice Barkett. Yes, sir. Senator, first of all, the basis for my
dissent was in a prior case of the Florida Supreme Court, Tetter v.
State, which is well known in Florida jurisprudence, and it specifi-
cally provides, as I pointed out in my dissent, that — and I am
quoting from the Tetter case upon which I relied — that "in order to
sustain a sentence of death following a jury recommendation of life,
the facts suggesting a sentence of death should be so clear and con-
vincing that virtually no reasonable person could differ."
We give great deference in our State, and I do particularly, to
jury determinations. It is the jury that is the conscience of the com-
munity that has heard all of these facts. In this case, a jury had
heard all of the facts, had heard all of the mitigating evidence, and
it was the people in the sense of the jury who determined that the
death penalty was not applicable under the law in this particular
case.
I, therefore, was applying the Tetter standard to the case in ques-
tion, and, again, in reference to your dissents, as I have pointed
out, dissents are very seldom or very rare. In the overwhelming
number of cases, I am in the majority, approximately 90 percent.
Senator Thurmond. Again, six of your colleagues took a different
position, didn't they?
Justice Barkett. Pardon me, sir? I am sorry.
Senator Thurmond. Again, six of your colleagues took a different
position?
Justice Barkett. Yes, sir, but there are 3,000-and-some where
we did not differ.
Senator Thurmond. Now I want to ask you about another case.
In Torres -Arboledo v. State, Torres-Arboledo, an illegal alien from
Colombia, rounded up two other men and went to a car body shop
where they attempted to take the owner's gold chain. When the
owner resisted, Torres-Arboledo shot him to death. The jury rec-
ommended a life sentence, but the trial judge, finding to
aggravators and not mitigators, overrode it and imposed death.
The Florida Supreme Court again — again, I repeat — by a 6-to-l
vote affirmed the death sentence. Chief Justice Barkett, in a three-
sentence dissent, you opine that, "The standard for overriding a
387
jury life recommendation had not been met in light of the totality
of the circumstances presented, it simply cannot be said that no
reasonable jury could have recommended life."
Chief Justice Barkett, if you are going to overturn a death sen-
tence in this procedural posture, do you feel that you have some
obligation to identify the circumstances that you think make a life
sentence reasonable?
Justice Barkett. Well, again. Senator, there is an enormous def-
erence under Florida law to what the jury says, and the jury who
heard the facts in this case and heard all of the testimony pertain-
ing both to the aggravating factors and to the mitigating factors,
the people decided that the death penalty should not be imposed.
My court in Tetter v. State, a decision reached prior to my joining
the court, has said clearly that it is only in extremely rare cases
and only when no reasonable person can differ that the judge, the
trial judge, can override what the jury, the people, have suggested
ought to be done.
There have been cases where I think that the jury — ^that no rea-
sonable person can differ, and in those cases, I have voted to ap-
prove the override. But they are very, very rare under the Tetter
standard that we have set forth.
Senator Thurmond. Next I would like to discuss Hudson v.
State.
The Chairman. Senator, if I can interrupt for a second so I un-
derstand the fact situation, in that case the jury recommended life;
correct?
Justice Barkett. Yes, sir.
The Chairman. The judge imposed death. You dissented and
said, in effect, the jury was right.
Justice Barkett. That is correct, sir.
The Chairman. OK. I just wanted to make sure I understood it.
Senator Thurmond. It was a 6-to-l decision affirming
The Chairman. No, I know that. I just
Senator Thurmond [continuing]. Affirming the case. Six of them
went one way, you went the other way.
Justice Barkett. In these few cases that you are asking me
about, yes, sir. In the vast
Senator Thurmond. Well, I have got a lot more cases, but I only
have time to go into about one or two more.
Justice Barkett. All right, sir.
Senator Thurmond. I would like to discuss Hudson v. State. Two
months after breaking up with his girl friend, Hudson, armed with
a knife, broke into her home during the night. The former girl
friend, having received threats from him, was spending the night
elsewhere, but her roommate was at home. When she began
screaming at him to leave, Hudson stabbed her to death, put her
body in the trunk of her car, and dumped her in a drainage ditch
in a tomato field.
Hudson was convicted and sentenced to death. By a 6-to-l vote,
the Florida Supreme Court affirmed. In your brief lone dissent, you
relied on the trial court's finding that Hudson was apparently sur-
prised by the victim during his burglarizing of a home, and that
Hudson therefore was unable to a certain extent to conform his
388
conduct to the requirements of law. You concluded that the death
penalty was disproportionate to the offense.
Chief Justice Barkett, in addition to the findings that you relied
on, the trial court also found that the aggravating circumstances
outweighed the mitigating circumstances and that the death pen-
alty was warranted. How is it that you concluded that the death
sentence was disproportionate? In my view, anyone who breaks
into a home that he believes to be occupied should expect to en-
counter an occupant. I just do not see how an intruder's surprise
should count seriously as mitigating.
Justice Barkett. Senator, I think that your comments underlie
the response that one feels when your house is being invaded and
these heinous acts are being committed. The point that I was mak-
ing earlier was that, by law, we are not permitted by the U.S. Su-
preme Court to only look at the aggravating factors of a crime,
even though emotionally you may want to apply the death penalty
in every case in which a murder is committed.
I also have to say I do not think I have ever said that the death
penalty was disproportionate to the offense in any of these cases.
The proportionality aspect of my decisions has to do with the rules
set forth by the U.S. Supreme Court that says that we must apply
the death penalty is an evenhanded and equal a way as possible,
and that we must engage in a proportionality review to determine
how the facts of this case square with the facts of another case.
We have often held on the Florida Supreme Court in cases prior
to this one that when a burglar is surprised or does not have the
ability to think through the consequences of his or her act, it cer-
tainly does not make him unculpable. He is certainly liable for a
life sentence, and that is what I voted for in this case. But the cul-
pability aspect of it which goes to the question of whether or not
he is eligible for the death penalty under Supreme Court precedent
has a different context. And so the proportionality issue had to do
with other cases which were very similar to this one and in which
the death penalty was not applied.
Senator Thurmond. I will just take one more case. I could go on
here much longer, but I will just take one more case.
Justice Barkett. All right, sir.
Senator Thurmond. Chief Justice Barkett, in Burr v. State, Burr
was convicted of first-degree murder and robbery with a firearm
and was sentenced to death. His conviction and sentence were af-
firmed on direct appeal. Following the signing of a death warrant,
he filed a motion for post-conviction relief, which was denied by the
trial court.
By a 6-to-l vote, the Florida Supreme Court affirmed the denial
of relief In dissent, you would have decided for Burr based on an
issue that you conceded had not even been raised by Burr: the con-
sideration of collateral crimes evidenced during the sentencing
phase.
Chief Justice Barkett, what limits, if any, do you believe exist on
your ability to assert claims on behalf of convicted criminals that
they have not asserted on their own?
Justice Barkett. Senator, the first observation that I would
make is that the U.S. Supreme Court reversed Burr on the same
basis upon which I dissented. We have an obligation also to inde-
389
pendently look at the record. This is, again, estabHshed by prior
case law, and in taking — we have a separate obligation to assure
ourselves that the death penalty has been appropriately applied,
and we have a separate obligation to take a look at the whole
record.
It is only because we have that separate obligation which the Su-
preme Court has considered in determining that our death penalty
is constitutional, this careful scrutiny that we give to the death
penalty. In this case, the death penalty had been imposed because
of a prior conviction that this defendant had. It was determined,
however, that this prior convict had been vacated and, therefore,
should not be considered.
The U.S. Supreme Court, when it took Burr, reversed the case
and said look at it in light of Johnson, which is a case which pre-
cisely said that you cannot impose the death penalty based upon
a conviction which had been set aside. And my court, when it was
returned from the U.S. Supreme Court, then vacated the sentence
pretty much unanimously.
Senator Thurmond. My question is about the propriety of mak-
ing an argument that the defendant himself did not make. The fact
that the court ultimately vacated the sentence shows that the proc-
ess worked without the sort of extraordinary judicial intervention
that you resorted to.
Given the strong public interest in making sure that brutal mur-
derers do not get back on the street, would you also make the argu-
ment on behalf of the State under like circumstances?
Justice Barkett. No, I think I understand. You are concerned
that I would just out of the blue pull something out of the air to
make a ruling upon, and that — because this language suggests that
we have an independent obligation. My response to that. Senator,
in different kind of cases perhaps not, certainly not. In this kind
of case, however, there is prior case law which requires me as a
supreme court justice, as a court of last resort, not to apply the
death penalty unless we have done an independent review. And I
think you are going to find many of our cases where we have stated
in the majority. We have looked at all of the record, and even
though there are lots of issues that were not raised, we have looked
at them and we have satisfied ourselves that the death penalty has
been appropriate.
If we do not do this, the death penalty, in my judgment — if we
do not provide this kind of scrutiny, the death penalty would be
deemed unconstitutional by the U.S. Supreme Court.
Senator Thurmond. Well, I am not going to go any further. I be-
lieve my time is up. I just want to say that case after case after
case after case, 6 to 1, six other judges going one way, you going
the other way that takes up for the defendant. That is a strange
record.
Thank you.
The Chairman. Thank you. Senator.
I am going to switch back to the Democrats for a second so that
an unrelenting charge has at least another perspective put into it,
and I am only going to take 5 minutes of the time.
Senator Grassley. How much time are you going to take?
The Chairman. Five minutes.
390
Let me put in focus about unrelenting — I mean this case after
case after case after case. In the one case the Senator from South
Carohna cited, the one involving the fellow who was involved in the
indecent exposure and then came back and blew the person away,
if I am not mistaken, the Supreme Court remanded that back to
you all, didn't it?
Justice Barkett. Yes, it did.
The Chairman. How did you rule when they remanded it back?
Justice Barkett. We vacated the death sentence. Senator.
The Chairman. You vacated the death sentence.
I am going to come back to a number of cases, that case where
the testimony indicated that — ^this is the case of Robinson v. the
State of Florida, where the testimony indicated that Robinson
pulled up behind St. George's parked car — I am reading — and or-
dered her into his car at gunpoint, handcuffed her, drove to the
cemetery where he sexually assaulted her on the hood of his car,
then he ordered Fields, the co-defendant, to do the same, and
Fields complied. Afterwards, Robinson expressed concern that she
could identify them. He then walked up to her, put a gun to her
cheek. Fields heard a shot, saw St. George fall, and watched Robin-
son stand over her and fire a second shot at her.
How did you rule on that case?
Justice Barkett. I think I voted to affirm the death penalty.
Senator.
The Chairman. You did.
Another heinous case: in the late morning or early afternoon be-
fore authorities found the body of Angela Baird in the tall grass in
a field behind her home. Her body was lying on its right side,
gagged, hog-tied by the wrists and ankles; the body was nude from
the waist down. Lying nearby were her school books, jacket, purse,
and empty paper lunch bag. The autopsy revealed that the victim's
left — and I will not read the rest of it.
How did you rule in that case?
Justice Barkett. The mitigating factors did not outweigh the ag-
gravating factors in that case, and I voted to affirm the death pen-
alty.
The Chairman. I can list tens of these cases like that.
Justice Barkett. Two hundred and sixty-some.
The Chairman. And not all as grisly as these, but focusing on
the grisly facts of an isolated case in which a nominee considered
the application of the death penalty I think makes it impossible to
fairly and accurately consider your judicial philosophy. An experi-
enced and conscientious judge, no matter how liberal or conserv-
ative, must sometimes vote to reverse a conviction or sentence in
a case involving heinous and atrocious crimes.
Consider the case of Justice Scalia, never thought to be a wacko
liberal by anybody that I know of, and let me read one of his cases
in isolation. In the 1987 U.S. Supreme Court case of Hitchcock v.
Bugger, originally a Florida case. Justice Scalia wrote a unanimous
U.S. Supreme Court opinion reversing the death sentence of a man
convicted of strangling his 13-year-old step-niece. The defendant
confessed that he had killed his step-niece because she had threat-
ened to tell her parents about him having had sexual intercourse
391
with him. In other words, the defendant killed the girl to cover up
the statutory rape of his step-niece.
The jury found the defendant guilty and recommended the death
sentence, and the trial judge agreed. Eleven years after the crime,
however, the Supreme Court overturned the sentence because the
trial court had considered only listed statutory mitigating factors.
Justice Scaha wrote for the Court, holding that the Florida trial
court had erred in failing to consider that the murderer's father
had died of cancer, that the murderer had sniffed gasoline fumes
as a child, causing his mind to wander, that he was one of seven
children in a poor family, and that he was a fond and affectionate
uncle.
Despite the decision by both the trial court, the judge and jury,
that the killer deserved to be sentenced to death. Justice Scaiia,
writing for a unanimous court, reversed because he had sniffed
fumes as a kid, his mind wandered, he was one of seven poor chil-
dren, et cetera. And he reversed.
The test being applied to you, judge, could be applied to any
judge. Justice Scalia's opinion in the Hitchcock case illustrates how
this kind of exercise does not permit, in my view, an accurate por-
trayal of a nominee's record. Rather than considering the gruesome
facts of every death penalty case in which the nominee is voted to
overturn, I think your record should be viewed in context.
Your record on the death penalty is clear. You voted to affirm the
death penalty in over 200 cases — 270, I think you said — including
cases in which a majority of the U.S. Supreme Court had agreed
that the death sentence should be overturned, Espinosa v. Florida
and Schlur v. Florida in 1982.
So I cite that not in any way to criticize Justice Scaiia. He is a
fine Justice. He is considered one of the most brilliant Justices to
serve on the Court. He is considered to be the epitome of the con-
servative point of view on the Court. But he was bound by the law.
And when I get a chance to question again, I am going to ask you,
because I do not think, quite frankly. Judge, you have had an op-
portunity to clearly explain the Florida law as it relates to mitiga-
tion and aggravation and what you must consider.
I now yield to my friend from Iowa.
OPENING STATEMENT OF SENATOR GRASSLEY
Senator GRASSLEY. Well, do not speak for me when you say
Scaiia satisfied all conservatives.
The Chairman. No, no, no, no. I did not say he
Senator GRASSLEY. Because on the point of congressional intent,
he will not look beyond the statute, and I think that it is wrong
for anybody sitting on the Supreme Court not to try to determine
some congressional intent
The Chairman. Senator, for the record, let me state, if I said it
I did not mean it. What I meant to say was — I thought I said that
Justice Scaiia represents and is thought to represent the conserv-
ative view in the Court, not that all conservatives agree with Jus-
tice Scaiia.
Senator GRASSLEY. Well, then, he does not represent my conserv-
ative view on the Supreme Court when he does not take congres-
sional intent into account.
392
The Chairman. I happen to agree with you on the merits of that
position. That makes us both moderates.
Senator Grassley. Well, I am glad you are moving to the center.
I am not. [Laughter.] I want to talk about what you and I visited
about a little bit in my office the other day. One of those things
was obscenity and child pornography. I would specifically like to
talk to you about your opinion in the Stall case. For the audience,
this was a constitutional challenge to the conviction of several por-
nographers under Florida's RICO statute for predicate violations of
the State obscenity laws.
The majority of your court upheld the constitutionality of the ob-
scenity law. You dissented, and you wrote about the role of judges
when there is a collision, in your words, "a collision between legal
principles and personal views of morality." I think that is a perfect
description of the issue that we are presented with in this hearing,
your ability to apply the law and leave moral and political ques-
tions to the political branches.
In our meeting Tuesday, you expressed your resolution never to
let your own views affect your application of the law. On its face,
I cannot find any fault with that statement. But your dissent in
Stall worries me because, as I understand it, it shows a tendency
towards judicial activism. Your decision seems infected with moral
relativism. You say the definition of obscenity is relative, so the
State cannot outlaw it.
I personally believe, and the Supreme Court has held, a commu-
nity can outlaw foul and degrading obscenity consistent with the
U.S. Constitution. In other words, obscenity is not protected
speech. In Stall, you said there is "a basic legal problem with the
criminalization of obscenity, that it cannot be defined." You argued
that because two people might disagree on what is obscene to
them, we cannot outlaw material the community considers obscene.
Do you believe, as you suggested in Stall, that it is unconstitu-
tional for States to enact any laws prohibiting obscenity?
Justice Barkett. First of all. Senator, I think it is clear that
States can pass laws prohibiting obscenity. If I may, I would like
to go back to the question of personal views, though. If I had my
druthers and I were applying personal views, there would be much
in the speech that I have heard in the last 6 months or so that I
would outlaw and regulate. I think that one does not apply one's
personal views. There would be much in the pornographic area that
I do not think would be, any question, in terms of personal views,
would be offensive in terms of what that has done to the victimiza-
tion of children and the victimization of women. So
Senator Grassley. When you talk about your own views, and
you are talking about the last 6 months, are you talking about the
direction the Canadian Supreme Court is taking in that area?
Justice Barkett. No, I am not familiar with that. Senator. I am
just saying that there is much in free expression that one does not
agree with, and were one to apply one's personal views, one would
not be — one would not necessarily be consistent with the first
amendment and the requirements of the first amendment.
But, that aside, let me direct my attention to Stall, which is
what you have asked about. Stall
393
Senator Grassley. Basically I want to know if we can outlaw ob-
scenity based on community standards.
Justice Barrett. Yes. The Federal
Senator Grassley. Flat out yes?
Justice Barrett. Flat out yes. The Federal courts have said so
in the Federal system, and the Florida courts have said so in the
Florida system in cases in which I have concurred. Stall dealt with
a specific statute defining sexual conduct. It had language in it
which, in my judgment, was very ambiguous and which fell afoul
of the Florida constitutional provision to make it clear to people
what acts they were engaging in that would be criminal and would
be criminally prosecuted.
In a later case called Schmitt, the Florida Supreme Court had
before it the very same statute, and in that case the Florida Su-
preme Court agreed with me that the offending language was un-
clear. And when they agreed that that part should be taken out of
the statute, I then concurred with the majority of the court in up-
holding the statute as constitutional under Florida's law.
Senator Grassley. Well, in the Stall case, the majority opinion
was guided by the U.S. Supreme Court's obscenity cases. And your
dissenting opinion, was quite explicit. You said that the criminal-
ization of obscenity "runs counter to every principle of notice and
due process in our society," which would seem to include the U.S.
Constitution.
I would like to have you clarify that specific statement.
Justice Barkett. Senator, I am sorry. I think maybe you were not
in the room when I was explaining how one views these things.
And when one is looking as a Florida judge in cases which impact
some values which the Florida Constitution has expressly valued —
for example, the right of privacy in our Constitution, which is an
added concept to the concepts of due process and first amendment
issues. When one is looking at cases from that perspective, one
looks at them differently than one looks at Federal cases which are
governed only by Federal laws.
There is no question that you cannot take one part of my view
in Stall and not look at the same judgment or the same view in
Schmidt. And in both those cases, the same statute was being de-
cided, the same statute was being considered. In one case, it had
this language that defined or attempted to describe conduct
which — well, those of us that watch — I didn't, but those of us that
had the opportunity to watch the Super Bowl could have deemed
some of the conduct there violative of this statute.
When one takes a look at language which could have
criminalized very innocent behavior and then take a look at the
very same statute later in Schmidt, where that language was de-
leted or omitted or found to be unconstitutional by the court, and
with which I concurred, I do not think you can fairly say that I
have held that no State regulation of pornography is possible.
Senator Grassley. There is an entirely different standard on
child pom than there is on obscenity, and you are comparing a
child pom? with an obscenity
Justice Barrett. The definition of the conduct is the same, Sen-
ator, in my judgment.
394
Senator Grassley. Does your statement, then, that criminal ob-
scenity laws, "run counter to every principle of notice and due proc-
ess in our society," apply only to Florida law?
Justice Barkett. It had to do with an attempted definition of
criminal conduct in the statute in question which really was not
clear. Senator. And later on, when the court took a second look at
it, they decided that that language was, indeed, ambiguous, and
over-broad and could not be appropriately defined and eliminated
it from the statute. And at that point, I concurred with the con-
stitutionality of that statute.
Senator Grassley. Well, I fail to see how the possibility that
some people might disagree about what is obscene undermines our
ability to declare that something violates contemporary community
standards under the test developed by the Supreme Court. There
are organized groups who argue that child pornography should not
be permitted, and that does not mean that a State cannot prohibit
child pornography.
In the criminal law generally, many laws have a subjective as-
pect. Reasonable people can probably disagree about what con-
stitutes criminal negligence or child neglect, but that does not
mean that those laws are unconstitutional. So how does subjectiv-
ity make the statute in the Stall case unconstitutional?
Justice Barkett. I think, Senator, again, when you view these
cases, you are looking within the context of Florida constitutional
values and expressions of policy and the Florida Legislature as well
as the prior cases under the Florida law.
When a legislature attempts to pass a law, one has to under-
stand what law is — ^what actions are being criminalized. You must
be able to understand the general nature of the act that you are
prohibited or going to be prohibited from engaging in. Therefore,
under our State laws and constitution, one has to very clearly de-
lineate what those are.
In this statute, in the area of pornography, the statute applied
the Miller test, which is analogous to the Federal test, but in this
statute they went further, and they attempted to define something
as obscene which was ambiguous and which could be susceptible to
differing interpretations.
When we looked at it from that perspective, it was my judgment
that under Florida's law that language was ambiguous, under some
due-process considerations, taking into account the Florida right of
privacy perspective, and therefore, it failed to pass constitutional
muster.
When later on we agreed that that language was ambiguous and
took it out of the statute, I upheld the statute. Ultimately the only
thing I can suggest to you is that there is no question that Federal
law has prohibited pornography and has permitted States to regu-
late pornography and to prohibit it. And whatever the Federal law
is is what I would then be governed by on the Eleventh Circuit
Court of Appeals. And it is that law with which I would comply
without any hesitation or question.
Senator Grassley. Again, I will state, the majority in Stall
based their decision on decisions of the U.S. Supreme Court and
the Federal Constitution. You rejected that analysis in your dis-
sent, which was very short: You also joined in that same case with
395
Judge Kogan, and enthusiastically endorsed that dissent. That
opinion argued that we cannot prohibit obscenity, even its produc-
tion and distribution, because we might interfere with the fun-
damental right to consume obscenity.
Justice Barrett. I think that Justice Kogan's dissent is replete
with citations to Florida cases and Florida law. Senator. All I am
suggesting is that you look at these cases very differently when you
are on the State supreme court of last resort and when you are re-
quired to follow Federal precedent. And I do not think there is any-
thing in my judicial career which would indicate, from the time I
was a trial judge, an intermediate appellate court judge, as well as
on this court, that would indicate that I would fail to follow prece-
dent as I saw it.
Senator Grassley. Well, let me read you a paragraph that comes
from the U.S. Supreme Court's decision in Paris Adult Theater,
that the majority used in Stall. "A man may be entitled to read an
obscene book in his room or expose himself indecently there. But
if he demands a right to obtain the book and pictures he wants in
the market and to gather in public places, discreet, but accessible
to all, with others who share his taste, then to grant him his right
is to affect the world about the rest of us and to impinge on other
privacies: Even supposing that each of us can, if he wishes, effec-
tively avert the eye and stop the ear (which in truth we cannot),
what is commonly read and seen and heard and done intrudes
upon us all, wanted or not."
You say that you look to the U.S. Supreme Court for persuasive-
ness and guidance, even when applying Florida law, I think the
quote illustrates well how obscenity harms us all. By joining Kogan
you were endorsing his view that their quote from the Paris case
was wrong.
Would you agree that the Federal Constitution does not griaran-
tee a right to produce and distribute obscene pornography in con-
trast to the right you and Justice Kogan found in the Florida Con-
stitution?
Justice Barkett. I would agree that the Miller test as estab-
lished by the U.S. Supreme Court is the test that must be applied
in a Federal context and that I would apply it with no hesitation
if I have the opportunity to serve in the Federal system, absolutely.
Senator Grassley. Well, how do you explain your rejection of the
analysis in the Paris Adult Theater that I just quoted to you?
Justice Barrett. As I said. Senator, what happens is you look
at things in the perspective in which you are, and the perspective
in which we sit as a court of last resort, which has a constitution,
which values privacy so much that it expressly states it and that
has a different analysis of such things as substantive due process
and procedure and equal protection, you look at it from a different
perspective.
What I can tell you is that when I am on the — oh, oh, I am so
sorry. If I have the opportunity to serve on the Eleventh Circuit
Court of Appeals, when you are looking at it from the perspective
of a Federal judge, you are looking at it only from the perspective
of Federal law. And it is a different perspective.
The Chairman. May I ask a question. Senator? Because I want
to make sure I understand. If article I, section 23 of the Florida
396
Constitution which provides — and I will quote it — "Every natural
person has the right to be let alone and free from governmental in-
trusion in his private life except as otherwise provided herein."
Were there not such a provision in the Florida Constitution, would
you have ruled differently in the case in question?
Justice Barkett. If we were governed by Federal law, I would
have applied Federal law, without any question.
The Chairman. Would you be governed by Federal law without
the Florida Constitution provision?
Justice Barkett. Assuming there were no other constitutional
provision in Florida impacted, of course, or Florida law.
The Chairman. Thank you. I am sorry for the interruption.
Senator Grassley. Well, if the right to consume obscene pornog-
raphy also protects the production and distribution of obscenity,
does that mean that I or, even worse, my grandchildren, cannot be
protected from constant bombardment in the convenience stores, on
the newsstands, on the theater fronts, or any other public place
where, obscene acts are being graphically depicted?
Justice Barkett. Senator, I have no question that Congress can
regulate or prohibit pornography or obscenity, and I would apply
the law that pertains to that question should I have the oppor-
tunity to do so.
Senator Grassley. But you are saying that obscenity is impos-
sible to define, and if we cannot define it consistent with due proc-
ess, how can we, in your judgment, place any restrictions on it?
Justice Barkett. Well, the Florida Supreme Court has done it.
In defining what is pornographic, what they did in Stall is they
added some language which said, to be specific, the touching of
clothed buttocks is pornographic. And as we all can imagine, there
are lots of situations in which one touches the clothed buttocks of
someone that is absolutely innocent. If this statute
The Chairman. Is that what you meant by a lot of people in the
Super Bowl would be —
Justice Barkett. Yes, sir.
The Chairman. Hell of a lot of guys I played ball with in school
would be in trouble.
Justice Barkett. And I think that when one attempts to — there
is no question that there is a good-faith effort that a legislature is
attempting to define that which is prohibited so that people know.
People have a right to know what conduct is going to be
criminalized, and there certainly is — you can describe it. You can
describe pornography, as the U.S. Supreme Court has said, to the
extent — and it can be regulated. It can be prohibited. But, on occa-
sion, legislatures go further and invade and impinge upon some
constitutional principles in terms of passing laws that are ambigu-
ous or that are unclear or that impinge upon some other constitu-
tional aspects.
I, again, have to ask for indulgence in terms of repeating myself.
I do not think it is fair to take a look at someone's record by isolat-
ing one language or one piece of work rather than taking a look
at someone's entire judicial career. I have been a judge since 1979.
I have had the opportunity to serve at every level of court, and I
think that when you look at a record that is reflective of the major-
ity or the mainstream of courts such as the Florida Supreme Court,
397
I, with all due respect, do not think you can make a case for sug-
gesting that I am outside of the mainstream.
In terms of the ultimate concern that you raise, Senator, there
is no question that obscenity can be regulated, that the U.S. Su-
preme Court has set forth the parameters of that regulation, and
that every Federal judge who is going to be true to their oath — and
I have never, to my knowledge, violated mine — would follow that
Supreme Court precedent.
Senator Grassley. You are talking about the Miller case?
Justice Barkett. Yes, sir.
Senator Grassley. Well, I guess that would have been my last
question. If approved by the Senate, and if you sit on the court,
then you will follow the precedents of that court and uphold State
prohibitions on obscenity that satisfy the Miller test?
Justice Barkett. Yes, sir, of course.
Senator Grassley. This may be going over ground, but I want
to read to you a couple sentences that you should explain, because
I do not think these comport with what you just said. You wrote,
"A basic legal problem with the criminalization of obscenity is that
it cannot be defined. Such a procedure runs counter to every prin-
ciple of notice and due process in our society." It seems to me that
with that basic philosophy, it is going to be hard for you to follow
Miller. You seem to insert your own views, opposed to applying the
community standards analysis. Basic to Miller is the fact that we
uphold laws prohibiting material violating those community stand-
ards as long as the material has no literary, artistic, political, or
scientific value, or no appeal exclusively to prurient interests.
Justice Barkett. I am sorry. I did not — if you are suggesting
Senator Grassley. The question
Justice Barkett. I will not have any problem following Federal
law when I am required and if I am required to follow Federal law.
But I also have an obligation as a judge in the State court system
to follow the State Constitution and the State precedent and the
State law. And sometimes they may differ, Senator.
Senator Grassley. And you showed that when you agreed with
Kogan, and went along with him on his dissent when he was find-
ing fault with the majority, who in turn were or were agreeing with
the U.S. Supreme Court on some of these issues?
Justice Barkett. Yes, sir, but in the context of Florida case law
and Florida constitutional precedent.
Senator Grassley. Mr. Chairman, I am done with obscenity.
The Chairman. Thank you very much.
We are going to take a break now for a minute, but let me take
just a minute here on this, and then we will break for lunch and
come back at 1:30. Let's make sure we understand what the tests
are in the Miller case. We keep referring to them. One is whether
the material appeals to the prurient interest in sex. Two is whether
the material portrays sexual conduct in a patently offensive way.
And, three, whether the work taken as a whole lacks serious lit-
erary, artistic, political, or scientific value. All three of those
things.
Justice Barkett. Yes, sir.
The Chairman. And reasonable people can have and do and will
continue to disagree on what they are. But let me make a point
398
that I think seems to be continually missed here. It is either being
missed by me alone or everyone else.
My understanding is that, as a matter of basic constitutional law
and the separation of powers doctrine and the notion of Federal-
ism, taking all three of those concepts, that if the State of Dela-
ware or the State of Florida wishes to be more expansive in its
granting of a recognition of rights than the Federal Constitution is,
it is permitted to do so. The times when the Federal Constitution
does not permit a State to do such a thing is when the States con-
clude that they are going to be more cabined in their view of what
it is a person, an individual, is entitled to do or not to do.
Case in point: If the Florida State Legislature wanted to say that
nude dancing was — or it was written in the Florida Constitution
that nudity on public beaches is constitutionally protected by the
State of Florida, and the Supreme Court had ruled that nudity in
public places violates — that the statute written by the U.S. Con-
gress saying nudity in a public place is illegal, and if the Supreme
Court had ruled that nudity in public places under that statute is,
in fact, obscenity, you could still have nudity on public beaches in
Florida without violating the Federal Constitution. Is that not cor-
rect?
Justice Barrett. Yes, sir.
The Chairman. So one of the issues here is, as I understand it,
you believe that, among other things, the section of the Florida
Constitution, I might add, adopted in 1980 by the people — this is
not adopted, you know, in 1880— by the people of the State of Flor-
ida, they believed more along the lines of a former Justice who
used the phrase which is oft quoted, "the right to be let alone." He
had defined in the penumbra of the Bill of Rights that right to be
let alone. They figured the heck with penumbras, we are going to
write it into our Constitution. And it says, "Every natural person
has a right to be let alone and free from Government intrusion to
his private life except as otherwise provided herein. This section
shall not be construed to limit the public's right to access to public
records and meetings as provided by law." End of section.
So the Florida folks said, We are not so sure we are going to let
it up to the Supreme Court of the United States to decide whether
we have rights that we think we have that are not enumerated in
the Constitution, in the Federal Constitution, so we are going to
make it real clear.
So by any reading of the Federal Constitution and the State con-
stitution, Florida's Constitution is more expansive. How much
more? No one knows. But it is clearly more expansive. And it is
that part of your rationale?
Justice Barrett. That is precisely correct. Senator. Under my
obligation as a Supreme Court Justice, it includes applying the
Florida Constitution to Florida citizens.
The Chairman. You have no idea how unusual this is to me.
Never did I think when I was in Holy Rosary grade school I would
be required to defend a nun against the charge she was soft on por-
nography. [Laughter.]
The Chairman. This is really an interesting turn of events for
me. A former nun, I might add.
399
Let me say we will now recess until — we were going to recon-
vene— I told Senator Hatch that we would reconvene at 1:30 be-
cause of his schedule, but since we have gone a little longer than
we thought, we will reconvene with the permission of Senator
Hatch at 1:45.
I expect. Justice Barkett, that we will finish this afternoon and
that Senator Hatch has a number of questions, as do others. I
think the questions you have been asked have been fair questions
so far. I think they warrant you having to explain them. And I am
sure there are going to be others.
You are doing a fine job. Let's just keep this moving, and hope-
fully we can finish this at a reasonable hour early this afternoon.
Justice Barkett. Thank you very much, Senator.
The Chairman. Thank you.
Justice Barkett. I appreciate it.
The Chairman. We are in recess until 1:45.
[Whereupon, at 1:05 p.m., the committee recessed, to reconvene
at 1:45 p.m., this same day.]
afternoon session
Senator Hatch. Justice Barkett, why don't we begin? Senator
Biden just said let's just go ahead because we do have a lot of
things to ask. And let me just state this preliminarily. If you need
any time or you need to break or you need any kind of a break,
just let me know.
Justice Barkett. I will. Thank you very much, Senator.
Senator Hatch. Because I am surely going to honor your feel-
ings.
I think there are real important questions. Let me just say that
I believe that the rulings on issues of State law are very probative
of how a judge will rule on the Federal bench. And as we have al-
ready established, appellate judges have a great deal of discretion
in determining whether and how existing precedent applies. And as
I mentioned before, they also face a lot of cases of first impression,
and it seems to me that where a State judge, in deciding an issue
of State law, has expressed disagreement with or even hostility to
a U.S. Supreme Court precedent, one can expect that that very
same judge may be very stingy or rather stingy in applying that
precedent. So I very much share the concerns, for example, that
Senator Grassley raised over your views on obscenity. They worry
him. They worry me. On the other hand, I am very interested in
your answers as well.
I had been mentioning before Senator Simon needed to take the
microphone that with regard to the LeCroy decision — I had gone
into that — where the Supreme Court subsequently rejected the po-
sition you took. For present purposes, however, I would simply like
to apply the methodology of your Zrillic opinion to the position that
you took in LeCroy.
Appl3dng that Zrillic methodology, one would say that a bright-
line age minimum of 18 is both under-inclusive and over-inclusive.
It is under-inclusive because it fails to protect from capital punish-
ment those persons over 18 who, in the language of your LeCroy
dissent, "have not fully developed the ability to judge or consider
the consequence of their behavior." It is over-inclusive because it
400
does protect those under 18 who have, in fact, fully developed their
deliberative faculties.
Moreover, your Zrillic methodology would appear to dictate the
conclusion that the 18-year bright line is simply irrational since it
would exempt from the death penalty a heinous murderer who was
17 years, 11 months, 28 days, at the time of his or her ofTense, but
would not exempt someone who was a few days older. So it seems
to me that your Zrillic methodology leads to the conclusion that
what you thought in LeCroy to be constitutionally mandated under
the eighth amendment is instead constitutional impermissible
under the equal protection clause.
So I would invite any comment you care to make on that, but
those are some of the things that bother me.
Justice Barkett. Right, Senator. First of all, the Zrillic meth-
odology implies that I somehow used equal protection as the focus
on Zrillic, and I can only tell you that that is really not at all the
focus which concerned me in Zrillic. I was dealing primarily with
the property issue.
I have never thought about the equal protection analysis in
terms of the death penalty, very candidly, and I am not sure how
it would — I mean, I do not think there is any question that it has
application here, so I do not make the connection.
The only thing I would add to that would be, as I said to Senator
Simon, when I decided LeCroy, the U.S. Supreme Court had de-
cided only Thompson, which drew the bright line at 16 years old.
Under 16 years old, you could not execute a minor, and they left
open the question of the 18-year-old situation. I determined that it
would be a violation based upon the analysis that I utilized. I do
not think there is any question that I would apply whatever law
the U.S. Supreme Court said was applicable, should I have the op-
portunity to serve on the eleventh circuit.
Senator Hatch. Well, one of the things that I have been pointing
out is I am concerned that you will invoke over-broad principles
that could be easily manipulated, and naturally I think you would
see why I would be worried about that, because you do cite the
equal protection clause of the Constitution in the decision.
Let me move on. My concerns over how your opinions have ap-
plied rational basis review under the equal protection clause are
also triggered by how your opinions have applied rational basis re-
view under the Federal due process clause. I would cite the case
of State V. Saiez, which was in 1986. In that case, you wrote an
opinion for the Florida Supreme Court holding that a State law
criminalizing the possession of embossing machines capable of
counterfeiting credit cards, to use your language, "violates sub-
stantive due process under the Fourteenth Amendment to the Unit-
ed States Constitution."
Now, specifically, you stated that the law was "not reasonably re-
lated to achieving the legitimate legislative purpose" of curtailing
credit card fraud. And in your words, you said, "It is unreasonable
to criminalize the mere possession of embossing machines when
such a prohibition clearly interferes with the legitimate personal
and property rights of a number of individuals who use embossing
machines in their businesses and for other non-criminal activities."
401
Now, I would like to focus not so much on the result reached in
Saiez as on the principle set forth, and let me just ask this ques-
tion: Are you aware of any Federal authority for the proposition
that criminalizing ownership of an item violates substantive due
process if that item has legitimate noncriminal uses? You cited no
such case in your opinion, but are you aware of an3dhing?
Justice Barkett. No, Senator. The opinions upon which I relied,
again, were Florida cases, and I can only cite you to a case called
Leoni, which meikes it — that was a case where the State attempted
to regulate operations of a drugstore which did not deal with the
preparation of controlled drugs and medical suppliers. And the lan-
guage that is used in that case — and, again, I have to point out
that due process concerns in Florida are different than Federal due
process concerns. The language in this case, which was written by
one of our Justices, Justice O'Connell, way before I ever was on the
bench at all, I think, which talks in terms about to exercise this
power, that is, the police power, to the detriment of the individual
or class, it must first be clear that the purpose to be served is not
merely desirable but one which will so benefit the public as to jus-
tify interference with or destruction of private rights. And since
that time, we also codified the Florida Constitution.
So I am not aware of the same analysis being applicable under
Federal cases, and I can only reiterate to you my view that when
you are in the Federal courts, you are looking only at Federal anal-
yses and Federal cases, and I would apply that.
Senator Hatch. You say you applied Federal due process law in
this particular case?
Justice Barkett. Well, did I say that? My only point — and,
again, I think I have quoted
Senator Hatch. Let me point it out to you on page 1127. It is
the second paragraph in the right column. I have to get my glasses
on. I am having a rough time seeing this. "Although Saiez's over
breadth and vagueness challenges fail, section 817.63 is neverthe-
less unconstitutional. It violates substantive due process under the
fourteenth amendment to the United States Constitution and arti-
cle I, section 9, of the Florida Constitution."
Justice Barkett. I recognize that, Senator. But if you go on to
look at the language that is used from other cases, they are all
Florida cases which have utilized the same phrase, but interpreted
it in a different way.
Senator Hatch. The next paragraph down, in the middle of it,
it says, "the due process clauses of our Federal and State constitu-
tions."
Justice Barkett. I know.
Senator Hatch. So, as you can see, I could not help but read that
and wonder why you would do that, because a broad range of crimi-
nally proscribed items also have legitimate uses. For instance,
marijuana can be prescribed as a medicine. Switchblades can be
used to slice apples. Certain drug paraphernalia can be used for to-
bacco purposes. Explosive devices can be used to build tunnels.
I guess the question is: What U.S. Supreme Court authority is
there for concluding that society, through its elected officials, lacks
the power to determine that the harmful effects of some or all of
402
these so outweigh the beneficial effects that possession should be
criminalized?
Justice Barkett. I understand that in the Federal context you
would not be making that analysis, Senator, but in the Florida con-
text you would.
Senator Hatch. You could do that.
Justice Barkett. You would be required to, and we did, and I
think that opinion was unanimous, or at least nearly so, if I am
not mistaken.
Senator Hatch. Well, I wonder even under the Florida context,
because I see no reason why the principle stated in your Saiez
opinion would not apply with full force to all of those examples that
I just went through. I could add, in my view, that the issue is not
the substantive wisdom of any given State law. I may agree or dis-
agree with that, just as you may. The issue is what branch of gov-
ernment should have the power to make those decisions. And legis-
lators may make from time to time what some, including you and
I, consider unwise decisions. But unless those choices contradict
the Constitution, their constituents, not judges, ought to make the
final determination as to whether or not they continue. And they
ought to be the check on such laws if they are wrong.
The substantive due process theory is just another tool for judges
to override the legislative process if they want to and override leg-
islative choices. So I am concerned that an over-broad use of that
principle can be applied selectively, reflecting the preferences of
judges reviewing the law acting as a kind of super-legislature. And
that worries a lot of people up here, including me.
Justice Barkett. Well, I think. Senator, in terms of the general
principle of courts acting as legislators and providing any lack that
they might find in the statute, I have made myself fairly clear over
my career, suggesting that I do not think that that is appropriate.
In terms of Saiez, I can only suggest that you look at the cases
upon which I relied, which express the same principle that I under-
stand you are having difficulty with, because it is different than
the Federal standards. But in Delmonico v. State, the court de-
clared a statute that prohibited the possession of spear-fishing
equipment in an area of Monroe County to be unconstitutional and
explained that it included that same principle. In Robinson v.
State, a statute that prohibited the wearing of any mask or cover-
ing whereby any portion of the face is hidden, concealed, and so
forth, to be unreasonable.
Although the terms, the phrases that are used, may be the same
in both bodies of law, the meanings that is ascribed to them are
very different.
Senator Hatch. Well, the question that naturally arises is: Why,
then, didn't you apply just the State due process law and not apply
the Federal due process?
Justice Barkett. I think in essence I did. Senator, and all I
can — I mean, I can certainly accept that in a body of law there are
going to be occasions when you are going to be careless, but I
think
Senator Hatch. Oversight.
Justice Barkett [continuing]. That there is no question that
when you look at the cases upon which this one relied and upon
403
the language which is quoted from other Florida cases, it was clear-
ly from that perspective that I was acting.
Senator Hatch. All right. In Florida Society of Ophthalmology v.
Florida Optometric Association, you stated, "Constitutions are 'liv-
ing documents,' not easily amended, which demand greater flexibil-
ity in interpretation than that required by legislatively enacted
statutes. Consequently, courts are far less circumscribed in con-
struing langauge in the area of constitutional interpretation than
in the realm of statutory construction."
Now, do you believe that courts should be "far less circumscribed
in construing" constitutional language, irrespective of whether the
result is to create or deny new rights?
Justice Barrett. I think the point that I was trying to make
there is there is a slightly different way of interpreting statutes,
the plain language of statutes, and in interpreting the plain lan-
guage of a constitution. In a statute, Congress or the legislature is
fairly specific and deals with, in essence, one concept, one sentence,
one provision at a time. In constitutions, the language is extremely
broad, and although it is a rule of statutory construction that you
stop at the plain meaning of a statute, what I was suggesting in
the case that you referred to is that when you are looking at con-
stitutions, you have to look at the intent of the entire document
more so than trying to attempt to do that in statutes.
For example, if you suggested that the same rule of statutory
construction — that is, that you would only apply the literal letter
of a constitution, you would then have to say that Congress could
make no law affecting religion or rights of free speech and so forth
or that a right to trial by jury would mean that you must have a
jury in every single case. And I think what occurred when the Su-
preme Court was looking at those cases and what I was referring
to is that you take a look at the intent of the entire document more
so than you do in the legislative, specific, narrow language that is
being used in one portion of a statute, where the legislature has
the opportunity to come back and correct it.
So circumscribe less only in the sense that you take a look at the
intent of the framers of the document as opposed to simply stop-
ping with an inquiry of the language if the language gives you an
indication that this is not what the framers intended. You have to
look at it in conjunction with the other provisions of the constitu-
tion.
The Chairman. Will the Senator yield for a question?
Senator Hatch. Sure.
The Chairman. Were you in a minority in both these cases?
Justice Barrett. No, sir. I think Florida Society of Ophthalmol-
ogy was a majority, or almost.
The Chairman. Was it 5 to 2, you wrote the majority opinion?
Justice Barrett. Yes.
The Chairman. Five agreed with you.
Justice Barrett. Yes, sir.
The Chairman. And in the Saiez case it was 7 to 0?
Justice Barrett. I believe that is correct.
The Chairman. Thank you.
404
Senator Hatch. Well, I do not know the other members of the
Florida Supreme Court, and I have not studied their jurisprudence.
I have to go by the reasoning of the opinions that
The Chairman. I am not being critical. I just want the record to
reflect
Senator Hatch. No, no, but I just want to make this point. I
know you are not. I have to go by the reasoning that you have au-
thored, and to a certain extent the opinions you have joined. What
I want to know, really, in this discussion is whether your judicial
interpretations of Federal questions are consistent with applicable
Federal precedent. And if a State court opinion misreads or mis-
uses the Federal equal protection clause and ignores or misapplies
principles that are enunciated in U.S. Supreme Court decisions, I
do not think it makes any difference how many judges join in the
opinion. That is the point. They would all be wrong in that situa-
tion.
Frankly, a nominee could be a lone dissenter in a State court
case and have the best reasoned opinion in that case. Conversely,
a nominee might author or join in the unanimous opinion, and that
could be one of the worst opinions ever rendered. And I have seen
some of those, too, as have you, I am sure. And I will cite Plessy
V. Ferguson as a perfect illustration of a case which upheld the odi-
ous separate-but-equal doctrine under the equal protection clause,
and that was a 7-to-l decision. So that does not particularly mean
anything, and I do not think anyone on this committee would sug-
gest that a nominee who wrote the opinion or voted in the majority
in a case like that, you know, would take refuge behind the other
seven people.
So these questions go a lot more to the way you judge than they
do to the final results in some of these cases. And as I see it, a key
premise of your provision is that Constitutions are not easily
amended. And in my view, this critical fact clearly counsels strong-
ly against, not in favor of, judicial adventurism in creating new
rights.
Justice Barrett. Well, I think I am not suggesting. Senator, that
one goes outside of the document or that one superimposes one's
own views on this. I think that the issue here is a very technical
question of whether or not — what the requirements were of a pro-
cedure in the Florida Legislature. The language, the specific lan-
guage in and of itself, might have dictated one result. But when
one read it in conjunction with other provisions of the constitution,
which one may do, under that theory of constitutional interpreta-
tion, in order to ascertain the true meaning of the framers with re-
gard to that provision, then that is permissible. As opposed to in
statutory construction, if you are taking a look at one subjective
line or two in a subsection of a statute, one need not refer to the
whole body of all of the congressional acts in order to obtain mean-
ing from it. One stops at the language of that law. That is the only
thing I was trying to point out there.
Senator Hatch. Well, the genius of the Constitution, what makes
it a living document is not that its meaning is to be judicially al-
tered over time, but, rather, that it gives broad play to the political
forces to address the great and the maybe not so great issues of
the day. That is I guess the point I am trying to get to.
405
Let me just address some of your fourth amendment decisions in-
volving drugs. Let me turn to Bostick v. State, if you have that
handy. That is a decision where you wrote for a 4-3 majority on
the court, and, of course, this decision was overturned by the U.S.
Supreme Court.
In that case, two officers boarded a bus bound from Miami to At-
lanta at a stopover in Fort Lauderdale. They explained they were
looking for illegal drugs and asked Bostick to consent to a search
of his luggage. And as you noted in your opinion, the trial judge
found that Bostick did consent, that the illegal drugs were found.
Now, in your opinion, you created a per se, across-the-board rule
that the police practice of boarding buses during scheduled stops
and questioning passengers was unconstitutional, and that any
consent obtained therefrom was, therefore, void.
Now, the U.S. Supreme Court ruled that the adoption of this
rigid per se rule was inconsistent with Supreme Court precedent,
which requires that whether or not consent was valid be deter-
mined under the totality of the circumstances. And that was the
Schneckloth v. Bustamonte case in 1973.
Now, the Supreme Court rejected your per se rule. Why did you
not find this precedent dispositive and apply this totality of the cir-
cumstances test in the first place?
Justice Barkett. Senator, the U.S. Supreme Court determined in
Bostick — search and seizure I think is one of the most difficult
areas of the law.
Senator Hatch. It is.
Justice Barkett. And one which all courts, including the U.S.
Supreme Court, have grappled with. They made a determination.
They interpreted our opinion in Bostick to say that any kind of a
request for a consensual search on a bus was per se violative of the
fourth amendment. They then returned it to us, saying look at this
again in light of the totality of the circumstances.
I then looked at it from the perspective of the totality of the cir-
cumstances, and finding no dispute as to the circumstances in
question, would have found as a matter of law, not because it was
a bus but because of all of the totality of the circumstances, that
it violated the search and seizure provisions in terms of being a co-
ercive request for consent.
Senator Hatch. But on remand from the U.S. Supreme Court,
the Florida Supreme Court finally ruled that the search in that
case was lawful.
Justice Barkett. Yes.
Senator Hatch. But you still did not agree, and you dissented in
the second decision. In your original opinion, you made the follow-
ing comment:
The intrusion upon privac rights caused by the Broward County policy is too great
for a democracy to sustain. Without doubt, the inherently transient nature of drug
courier activity presents difficult law enforcement problems. Roving patrols, random
sweeps, and arbitrary searches or seizures would go far to eliminate such crime in
this State. Nazi German, Soviet Russia, and Communist Cuba have demonstrated
all too tellingly the effectiveness of such methods.
Now, I agree that the fourth amendment is the bulwark of our
liberties and that there are certain police tactics that cannot be tol-
erated in our free society. But do you really believe that what the
406
two officers did here in this particular case, identifying themselves
and asking for consent to search the luggage of a bus passenger
rather than just taking the luggage and opening it or dragging the
passenger off the bus, ought to have been compared to Nazi Ger-
many, Soviet Russia, or Communist Cuba?
Justice Barkett. Senator, I would never compare the conduct of
any of our police officers in this country to those of Nazi Grermany
or Soviet Russia, and I do not think there is any question but that
had I made such a comparison, I would not have received the sup-
port of many of the rank-and-file officers in my State.
I think it is clear that they are placed in an inordinately difficult
position in terms of understanding what the law is and what the
law is not.
In our democratic system, we, of course, as a free society value
and have always valued the ability to walk freely in the streets,
unless we have forfeited that right by virtue of doing something
which violates the law or giving a police officer a reasonable basis
to believe that we might have violated the law or probable cause
to arrest us for having violated the law.
The bus situation was one in which the State concededly said
there was absolutely no reasonable suspicion and no probable cause
to stop and inquire of any of these passengers. My understanding
of the U.S. Supreme Court's precedent is that one can do that if
one does it in a context in which the person feels free to not re-
spond or to say, "I do not want to have a conversation with you."
And one must look at the circumstances of the case in order to de-
termine whether or not that citizen felt free.
We are not talking about a situation where there might have
been reasonable suspicion to believe that a crime had been commit-
ted.
Under the totality of these circumstances, in the crowded bus
and the fact that there was only a short stop and the fact that
these police officers were wearing their uniforms, had a gun very
visible in their pouch and so forth, as delineated by Judge Letz
below, it seemed to me that the Mendenhall standard would have
dictated that this was a coercive situation.
Granted, the Supreme Court has ruled as it has. I would apply
that. I think under the circumstances here, as a matter of law,
since there was no debate about the circumstances as a matter of
law, the fourth amendment was violated. That is what they sent
it back for us to do, in my judgment.
Senator Hatch. Well, my only problem was you used that lan-
guage, and I have to say that nobody is immune from using injudi-
cious language from time to time. Why, even Senator Biden and
myself have been known to do that from time to time.
The Chairman. Once, once.
Senator Hatch. Only once for him. In my case, I am sure a num-
ber of times. But you can see why, you know, some police people
would be upset with that kind of language. Go ahead.
Justice Barkett. Senator, this was an issue that was raised dur-
ing my merit retention campaign. Fortunately for me, many mem-
bers of the police department took the time to sit down with me,
to read the case themselves, and to come to the conclusion that in
no way was I attempting to impugn or hold in any less respect
407
than people in my State know I hold the police. As a result of that
meeting, as a result of taking the time to read all of my cases, I
had the support of the Police Benevolent Association and many po-
lice officers who helped me during my campaign. I think the ones
in my State
The Chairman. The FOP endorsed you, didn't they?
Justice Barkett. I am sorry.
The Chairman. Did the FOP endorse you?
Justice Barkett. Yes, they did during my — and we had the same
kinds of meetings, Senator.
The Chairman. And the National Association of Police Organiza-
tions supports you now; correct?
Justice Barkett. Yes, sir. And I think that the police officers in
my State know that I have nothing but the highest regard for
them. They have a very difficult job to do. They are treated very
badly, not only by criminals but by many members of our society
who do not take adequate care of them in many regards. I value
them. I value their input. In my administrative capacity, I have al-
ways sought their advice and have conferred with them in a myr-
iad of different ways simply because I think they have a great
stake in our court system and they should be consulted. And I do
not think there is any question by many of the members of the po-
lice in my State that I hold them in such high regard.
What I was trying to point out was that if you leave it unfettered
discretion and give absolute power, without guidance, the result is
what we have seen in totalitarian countries. I had no intentions of
even comparing them in specifics to that.
Senator Hatch. All right. In the recent case called
Sarantopolous, two police officers received an anonymous tip that
Sarantopolous was growing marijuana in his back yard. I think
this one was raised with you, but maybe I am wrong. The two offi-
cers entered a neighbor's yard, and one of the officers, standing on
his tiptoes, looked over a 6-foot tall wood fence and spotted mari-
juana plants.
The police then went and got a search warrant, and they ar-
rested Sarantopolous, and by a 5-to-2 vote, your court ruled that
the search was lawful. The majority said that Sarantopolous lacked
a reasonable expectation of privacy in his back yard since it was
protected from view only from those who remained on the ground
and who were unable to see over the 6-foot fence.
Now, you, in dissent, said,
I cannot believe that American citizens sitting on porches or in their back yards
are not constitutionally protected when Government agents, acting only an anony-
mous tip, climb on ladders or stretch tiptoes to peer over privacy fences.
Now, the question I ask is: Isn't it a settled standard under the
fourth amendment that whether a search is constitutional turns
not only on whether a person has manifested a subjective expecta-
tion of privacy, but whether or not that expectation of privacy is
reasonable?
Justice Barkett. Yes. I think.
Senator Hatch. And I think
Justice Barkett. Was that the — I am sorry. I didn't know wheth-
er that was the end of the question or not.
408
Senator Hatch. No, I think you answered it right. That was the
question. You answered it right.
The Chairman. But the issue is, isn't it what is a reasonable ex-
pectation?
Senator Hatch. That is right. That is what the issue is.
Now, whil